ASAGW-Cairo2005/T5-7

A MULTIDISCIPLINARY APPROACH FOR SHARING TRANSBOUNDARY GROUNDWATER - A CASE STUDY FROM PALESTINE AND ISRAEL

FADIA DAIBES 1 Water Law and Policy Specialist East Jerusalem, Palestine ABSTRACT Comprehensive cooperative approaches that govern the utilization, development and protection of transboundary groundwater are still lacking. This paper addresses the lessons that could be learnt from international law and best state practice to help achieve an integrative mutually beneficial arrangement for nations sharing transboundary groundwater. The paper employs a multidisciplinary approach that draws primarily from the disciplines of hydrology and law to address the issues, taking into account the prevailing political situation within the area of study. The methodology is based on the understanding that the natural and physical characteristics of the international watercourse coupled with the social, political and economic conditions of the region have a vital role to play in offering or hampering solutions for potential international water conflicts. The proposal for approaching the problem is to progressively establish a solid basis for long-term sustainable arrangements. This progressive approach starts with a non-binding flexible arrangement that will serve the short-term need, and gradually build up into a final, legally binding arrangement based upon international law. The proposed approach is tested on the conflict between the Palestinians and Israelis on the Mountain Aquifer.

1 INTRODUCTION “Solutions to partly resolve the world’s water crisis may lay hidden underground.”2 More than half of the world’s population already depends on groundwater that is pumped from layers of rock or other geological strata, known as aquifers,3 which lie hidden below the Earth’s surface. “These formations can span thousands of kilometres and contain enough water to satisfy all of humanity’s demands [for water] for many decades.”4 Groundwater is the largest source of fresh water available in reserve on Earth.5 “Of 37 million cubic kilomet[res]…of freshwater estimated to be present on this planet, about 22% occurs below the land surface in the form of groundwater storage.”6 “Excluding water locked in polar ice caps, this constitutes 97% of all freshwater potentially available for human use.”7 “Groundwater is in general a high-value resource and is especially important as a source for drinking water. In Europe, for instance, 75% of drinking water supplies come from groundwater sources, with [reliance] up to 98% in Denmark”8 and 100% in Lithuania.9 In arid or semi-arid regimes, groundwater is almost the sole source of water supply for human and other consumption.10 Human dependence on groundwater as a major source of water supply has been recently acknowledged and the risks associated with depleting this valuable resource are widely recognized.11 In physical terms, aquifers are of two major types: connected aquifers12 and confined aquifers.13 The following discussion investigates and analyzes the way the law treats both types.

1 Water Law and Policy Specialist, International Water Law Research Institute, Dundee University, Scotland www.dundee.ac.uk/law/iwlri , e-mail:

fadia@sabreen.org, East Jerusalem, P.O. Box 51875. This article is based on the researcher’s unpublished PhD thesis, Dundee University, 2004. 2 Press Release, UNESCO, Africa’s Hidden Groundwater Resources (June 4, 2002), http://www.unesco.org/bpi/eng/unescopress/2002/02-

39e.shtml. 3 AMY OTCHET, THE NEW COURIER NO. 1, SCIENCE: OUR HIDDEN HYDRO-CAPITAL, The New Courier No. 1 (UNESCO ed., 2004), at

http://portal.unesco.org/en/ev.php-URL_ID=6614&URL_DO=DO_PRINTPAGE&URL_SECTION=201.html (last visited Nov. 30, 2004). 4 OTCHET, supra note 3. 5 THE NATURE CONSERVANCY, A PRACTITIONER’S GUIDE TO FRESHWATER BIODIVERSITY CONSERVATION 139 (Nicole Silk & Kristine Ciruna

eds., 2004), http://www.freshwaters.org/pub/ (last visited Nov. 30, 2004). See also Stefano Burchi, National Regulations for Groundwater: Options, Issues and Best Practices, in GROUNDWATER LEGAL AND POLICY PERSPECTIVES: PROCEEDINGS OF A WORLD BANK SEMINAR 55, 55 (Salman M.A. Salman ed., 1999) (explaining the importance of groundwater as a source for drinking water supply).

6 Stephen Foster, Essential Concepts for Groundwater Regulators, in GROUNDWATER LEGAL AND POLICY PERSPECTIVES: PROCEEDINGS OF A WORLD BANK SEMINAR 15, 15 (Salman M.A. Salman ed., 1999).

7 Id. 8 Burchi, supra note 5, at 55. 9 INT’L BENCHMARKING NETWORK, BENCHMARKING, WATER & SANITATION UTILITIES: CORE INDICATOR VALUES, NODE: LITHUANIA, at

http://www.ib-net.org/wb/bench/lithuania_node.html (last visited Nov. 30, 2004). 10 See SLAVKO BOGDANOVIC, INTERNATIONAL LAW OF WATER RESOURCES CONTRIBUTION OF THE INTERNATIONAL LAW ASSOCIATION (1954-

2000) 329 (1986). 11 See Burchi, supra note 5, at 55. 12 A connected aquifer is an aquifer connected to the surface water system and annually replenished by water which finds its way to the saturated

rock formations that can hold and transmit water to wells and springs. Such aquifers occur in the following situations: (i) when the aquifer is overlain by a low permeability or a leaky confining layer that permits water to slowly flow through it; (ii) when the aquifers are “close to the land surface, with continuous layers of materials of high intrinsic permeability extending from the land surface to the base of the aquifer;” and (iii) when a layer of

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Transboundary groundwater,14 sometimes referred to as international or cross-border groundwater, is used in virtually every continent of the world15 and is subject to the same competition for use as indigenous water resources. Many transboundary aquifers are found in Africa,16 the United States,17 Europe,18 and the Middle East.19 “Because of the special problems that are present when more than one national jurisdiction is involved, extraordinary concern has been shown for waters that are international in character.”20 A water scarce situation coupled with political instability and inequality in power structures between two nations sharing the same fixed amounts of water is the most complex setting for resolving water conflicts. This is true in the region of the Middle East where political factors inevitably play a decisive role in the settlement of international water disputes. This article inquires into the rules and principles governing the utilization of shared transboundary groundwater and questions how parties may initiate and implement cooperative frameworks in the complex political context of the Mountain Aquifer. The main objective of this research is to utilize lessons learnt from international law to achieve an integrative, mutually beneficial arrangement for the Mountain Aquifer.

1.1 Background: Groundwater Management Problems and Challenges Hydrologists, lawyers and water specialists collectively agree the primary two problems relating to groundwater management are pollution and depletion.21 In general, depletion seriously threatens aquifers with over-exploitation and water quality degradation. The declining water levels in transboundary aquifers can lead to increased costs in water pumping and utilization and may trigger conflicts between states sharing the resources.22 These two problems pose challenges that hydrogeologic and legal perspectives need to address. First, a better hydrogeologic understanding is needed on: (i) the interaction between groundwater and other elements of the environment;23 (ii) the complexity of the hydrogeological regime; (iii) the vulnerability of the aquifers to pollution; (iii) the nature of replenishment or recharge; (iv) extraction and water table fluctuation; and (v) pollutants distribution.24 Second, from a legal perspective, the issues are mainly related to the: (i) identification of the scope and description of the groundwater resources;25 (ii) identification

low permeability material is found as a lens in more permeable materials where water moving downwards is intercepted by this layer and will accumulate on the top of the lens. FETTER, supra note 3, at 110.

13 Confined aquifers “are often described in the legal literature as “fossil” aquifers. These are aquifers with no appreciable [recent] recharge and which cannot discharge naturally. As a result, water in these aquifers is stagnant and has little if any flow. By definition, they cannot be utilized sustainably as any withdrawal eventually will exhaust the resource. Such aquifers generally contain ground water that is trapped in a geologic formation, either because of physical isolation of the aquifer from sources of recharge, impermeability of overlying strata, or paucity of recharge in an arid region. Typically, water in [confined] aquifers is hundreds if not thousands (or millions) of years old.” FOOD & AGRIC. ORG. OF THE UNITED NATIONS, “FOSSIL” AQUIFERS 1, at http://www.fao.org/Legal/advserv/isarm1.pdf (last visited Nov. 30, 2004) (based on the notes contributed by Gabriel Eckstein). See FETTER, supra note 3, at 110, 286; E-Conference on the Management of Transboundary Groundwater Resources, Unesco Bulletin Board (unpublished internet bulletin board conference), at

http://www.unesco.org/ubb/Forum24/HTML/000003.html (last visited Nov. 25, 2004) (providing additional information regarding the basic concept of renewable and non-renewable aquifers).

14 Julio Barberis, The Development of International Law of Transboundary Groundwater, 31 NAT. RESOURCES J. 167, 168 (1991) (explaining the four situations creating an international or transboundary aquifer: (i) where a confined aquifer is intersected by an international boundary, “[t]his aquifer is not linked hydrologically with other groundwater or surface water, and consequently, only the aquifer itself can be considered a shared natural resource;” (ii) where an aquifer lies entirely within the territory of one state but has interconnections and interdependence with an international river; (iii) where an aquifer is entirely situated within the territory on one state but recharged in another State; and (iv) aquifers found entirely in the territory of one State but hydrogeologically connected with another aquifer in a neighbouring state).

15 BOGDANOVIC, supra note 10, at 328. 16 Examples of aquifers in Africa: the Northern Sahara Aquifer shared between Algeria Tunisia and Libyan Arab Jamahiriya; Chad Aquifer shared

between Niger, Chad, Sudan, Central African Republic, Nigeria and Cameron; Aquifer on the Taoudeni Basin shared between Chad, Egypt, Libyan Arab Jamahiriya and Sudan; and the Kalahari/Karoo multi-layered aquifer shared by Namibia Botswana and South Africa. See BO APPELGREN ET AL., INTERNATIONALLY SHARED (TRANSBOUNDARY) AQUIFER RESOURCES MANAGEMENT: THEIR SIGNIFICANCE AND SUSTAINABLE MANAGEMENT: A FRAMEWORK DOCUMENT 17 fig.7, 52 (Shammy Puri ed., 2001), http://unesdoc.unesco.org/images/0012/001243/124386e.pdf (last visited Nov. 30, 2004); INT’L GROUNDWATER RES. ASSESSMENT CTR., GLOBAL GROUNDWATER REGIONS 10 (2004), http://igrac.nitg.tno.nl/pics/regions-d.pdf (last visited Nov. 30, 2004).

17 Eighteen transboundary aquifers exist in the Mexico-United States border area. E-Conference on the Management of Transboundary Groundwater Resources, supra note 13.

18 See generally E. ALMASSY & ZS. BUZAS, UN/ECE TASK FORCE ON MONITORING AND ASSESSMENT, VOL. 1: INVENTORY OF TRANSBOUNDARY GROUNDWATERS (Sept. 1999) (documenting over 100 aquifers that shared by two or more states; examples include: the aquifer system of the Vechte Catchment, shared by Germany and the Netherlands; and the alluvial aquifer system shared by the Czech Republic and Poland), at http://www.iwac-riza.org/IWAC/IWACSite.nsf/7BAFC09E93A2EE9DC1256BB800476C12/$File/Task%20Force%20Vol%201.pdf (last visited Nov. 27, 2004).

19 Examples include: the Mountain Aquifer shared between Palestine and Israel; the Saq aquifer shared between Saudi Arabia and Jordan; and the Nubian Sandstone aquifer in Sinai and Negev shared between Egypt and Israel. APPELGREN ET AL., supra note 16, at 15, 20.

20 U.N. Dep’t of Econ. & Soc. Affairs, Management of International Water Resources: Institutional and Legal Aspects, Report of the Panel of Experts on the Legal and Institutional Aspects of International Water Resources Development iii (1975).

21 Burchi, supra note 5, at 55; FETTER, supra note 3, at 13; Robert Hayton & Albert Utton, Transboundary Groundwaters: The Bellagio Draft Treaty, 29 NAT. RESOURCES J. 663, 663 (1989).

22 See Albert E. Utton, The Development of International Groundwater Law, 22 NAT. RESOURCES J. 95, 102 (1982). Excessive pumping of groundwater may lower water levels in groundwater wells, this increased depth requires more powerful pumps and technical installations which has higher costs. Id.

23 THOMAS WINTER ET AL., U.S. GEOLOGICAL SURVEY CIRCULAR 1139, GROUND WATER AND SURFACE WATER A SINGLE RESOURCE, at III (1998), http://water.usgs.gov/pubs/circ/circ1139/index.html (last visited Nov. 27, 2004).

24 See Utton, supra note 22, at 101-02. 25 This includes identification of the following: what groundwaters are at issue (related groundwater, fossil waters...etc), other states that share the

resource, applicable existing legal agreements, the state’s most important interests and the dependence of the state on groundwater for use .

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of the rules and principles that govern the allocation between uses at the national level;26 (iii) legal entitlements of States at the international level;27 and (iv) implementation of these entitlements including the development of procedures, mechanisms and institutions that ensure compliance and enforcement. In addition to the physical complexity of groundwater as a resource and due to its hidden nature, there is an inherent lack of hydrogeological data that results in a high degree of uncertainty in the estimation of key parameters required to characterize the aquifer system.28 In hydrogeological terms, these cross-border resources can only be estimated through good observations and measurements of selected hydraulic parameters, analogous to the estimation process of other transboundary resources, such as fisheries and wildlife, each requiring statistically sound observations.29 While reliable data is the pillar for successful management, and good regulation is the means for achieving cooperation between states,30 the absence of reliable information is a perpetual concern typical for groundwater resources.31 The complexity of the groundwater regime and the ambiguity of its characteristics complicate the task of assessing these resources. At the national and international levels, a policy decision is urgently required to identify or map the boundaries of an aquifer before beginning to assess accurately the quantity and quality of water it contains, which would require substantial investment and scientific expertise.32 This need calls for the establishment of an information base that embraces comprehensive data on general groundwater and, in particular, groundwater that crosses political boundaries.33 Such an information base requires the development of a comprehensive and credible monitoring system that can generate the type of information and data needed. The monitoring system must be supplemented by assessment systems capable of processing and transforming the data into reasonable and usable information for the enactment of the responsive rules and regulations.34 The development of comparable monitoring and assessment systems in transboundary groundwater states sharing the same aquifer is essential. This will ensure the confident exchange of data and information between them and consequently fulfil the objectives of cooperation.

1.2 Transboundary Groundwater Law: The Need for Modern Development The unique characteristics of a watercourse, and the need to use water in a rational way, require legal solutions different from those applicable in other branches of international law.35 This explains the fact that international water law is widely recognised as a distinct branch of international law.36 Furthermore, the special requirements of optimal and sustainable development of international groundwater aquifers, and the alarming rate at which water resources are being overexploited and polluted, suggest groundwater is increasingly becoming a high-value resource.37 In the case of non-renewable groundwater in confined aquifers, the problem is even more complex because exploitation is prompting the development of more appropriate legal, economic, social and institutional frameworks. The establishment of cooperative frameworks and mechanisms for the utilization, development and protection of groundwater resources supplement these responses. Whilst international law related to the use of international surface watercourses has recently been subjected to remarkable development,38 the law governing transboundary groundwater appears to remain rather uncertain.39 International law governing the non-navigational uses of international watercourses has been developing during the last fifty years. This body of law provides suitable guidance and adequate legal instruments to settle conflicts and prevent

26 At the national level, the water code must specify the different types of water use that are considered lawful as opposed to others, which the law

does not recognize. This allocation can be based on many criteria depending on the State’s national water policies. See Dante A. Caponera, Requirements for Drafting a Modern Water Code and Water Legislation in the ESCWA Region, in EXPERT GROUP MEETING ON WATER LEGISLATION IN THE ESCWA REGION 36 (1996) (on file with author).

27 At this preliminary stage there is a need to understand that the main concern at the international level is identifying the “right to use water” or the “legal entitlements” of the states from the shared resources that must be based on the customary principle of international law “equitable and reasonable utilization.” See generally INTERNATIONAL WATER LAW: SELECTED WRITINGS OF PROFESSOR CHARLES B. BOURNE (Patricia Wouters ed., 1997) (explaining the right to utilize international water resources).

28 See Hayton & Utton, supra note 21, at 674-75. 29 See ALMASSY & BUZAS, supra note 18, at 149-50. 30 APPELGREN ET AL., supra note 16, at 9. 31 Important data include aquifer thickness, saturated thickness, depths, area, quantity and quality of the area, transmissibility, permeability

recharge areas and other aquifer related parameters. See Hayton & Utton, supra note 21, at 688-91. 32 See APPELGREN ET AL., supra note 16, at 8. 33 Id. at 21-23. 34 ALMASSY & BUZAS, supra note 18, at 150. 35 See Lucius Caflisch, Preface to International Water Law: Selected Writings of Professor Charles B. Bourne, supra note 27. 36 THE LAW OF INTERNATIONAL DRAINAGE BASINS 2-3 (A.H. Garretson et al. eds., 1967). However, general principles of international law such as

the notions of community and good friendship provide the foundation for the rules of international water law. The Development of International Water Resources: The ‘Drainage Basin Approach,’ in INTERNATIONAL WATER LAW: SELECTED WRITINGS OF PROFESSOR CHARLES B. BOURNE, supra note 27, at 3.

37 Burchi, supra note 5, at 55. 38 Stephen C. McCaffrey, The Evolution of the Law of International Watercourses, 45 AUSTRIAN J. OF PUB. & INT’L L. 87, 90 (1993). See U.N.

DEP’T OF ECON. & SOC. AFFAIRS, supra note 20, at 1-4; DANTE A. CAPONERA, PRINCIPLES OF WATER LAW AND ADMINISTRATION: NATIONAL AND INTERNATIONAL 187-96 (1992) (detailing recent international conventions, treaties, and other laws related to surface water). See generally William L. Griffin, The Use of Waters of International Drainage Basins under Customary International Law, 53 AM. J. INT’L L. 50 (1959) (providing a comprehensive overview of major treaties governing international drainage basins).

39 For a review of international groundwater law evolution, see ROBERT HAYTON, RAPPORTEUR, Report of the Committee on International Water Resources Law: Part II – the Law of International Groundwater Resources, in INTERNATIONAL LAW ASSOCIATION, REPORT OF THE SIXTY-SECOND CONFERENCE HELD AT SEOUL 238-45 (1987).

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disputes over shared water resources.40 Hundreds of treaties address the major rivers of the world, including the Niger,41 Nile,42 Danube43 and the Mekong.44 Only few regulate both international surface and groundwater, and those rarely deal with transboundary groundwater as a distinct subject of the law. “At the commencement of the 21st century water scarcity is taking the dimension of growing global risk. The concern is becoming most evident in the arid and semi-arid areas of Africa where shortage and lack of access to water form the main causes for poverty, dwindling public health and food insecurity.”45 “The scarcity and rapid depletion of water in one of the world’s driest regions constitutes a major determinant to the domestic and external policies of the major actors in the Middle East.”46 The large variations in rainfall and limited surface resources have led to widespread scarcity of the fresh water resources in the region, resulting in a heavy reliance on groundwater as the major source for various uses.47 The contribution of surface water to the overall water balance is limited and marginal.48 Finally, due to the increasing dependence on groundwater, conflicts over the use and development of transboundary groundwater aquifers are expected to grow in the coming few decades, and there is an increasing need to achieve a more optimal, equitable and sustainable utilisation of these resources through better co-operation between those sharing the waters. This cooperation is essential for the maintenance of peace and the avoidance of conflicts.

2 NATIONAL GROUNDWATER REGULATION AND RELEVANCE AT INTERNATIONAL LEVEL

A review and analysis of selected national groundwater legislation illustrates the choice of regulatory mechanisms, or options, available to law makers in the framing of responses to challenges posed by groundwater pollution and depletion.49 In Europe the WFD50 presents a good example on modern trends in legal treatment of water resources including groundwater. It is meant to be a State and Interstate European Union (EU) related legal instrument, which aims at improving the protection of surface and groundwater.51 Also in Europe the UNECE countries have adopted the Charter on Groundwater Management which gives broad support to UNECE member Governments in their common endeavours to protect ground water by providing planners and decision-makers with appropriate policy instruments.52

40 Waltina Sheumann & Axel Klaphake, Deutsches Institute fur Entwicklungpolitilk, The Convention on the Law of Non-Navigational Uses of

International Watercourses (Jan. 18, 2001), http://www.water-2001.de/supporting/WaterConvention.pdf (last visited Nov. 27, 2004). 41 Convention Creating the Niger Basin Authority, Nov. 21, 1980, 1346 U.N.T.S 208 (entered into force Dec. 3, 1982); Agreement Concerning the

Niger River Commission and the Navigation and Transport on the River Niger, Nov. 25, 1964, 587 U.N.T.S. 21 (entered into force Apr. 12, 1966); Act Regarding Navigation and Economic Co-operation Between the States of the Niger Basin, Oct. 26, 1963, 587 U.N.T.S. 11 (entered into force Feb. 1, 1966). See also Revised Convention Creating the Niger Basin Authority, Oct. 29, 1987, UNITED NATIONS FAO LEGISLATIVE STUDY 61, TREATIES CONCERNING THE NON-NAVIGATIONAL USES OF INTERNATIONAL WATERCOURSES: AFRICA, http://www.fao.org/docrep/W7414B/w7414b00.htm#Contents;

42 Agreement for the Full Utilization of the Nile Waters, Nov. 8, 1959, U.A.R.-Sudan, 6519 U.N.T.S. 64 (entered into force Dec. 12, 1959). 43 Convention on Co-operation for Protection and Sustainable Use of the Danube, June 29,1994 [hereinafter 1994 Danube Convention],

http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/331ENG.htm (last visited Nov. 27, 2004); Agreement on the Co-operation on Management of Water Resources in the Danube Basin, Dec. 1, 1987, F.R.G.-Aus.,

http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/278ENG.htm (last visited Nov. 27, 2004). 44 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, Apr. 5, 1995, Cambodia-Laos-Thail.-Vietnam,

http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/170ENG.htm (last visited Nov. 27, 2004); Joint Declaration of Principles for the Utilization of the Lower Mekong Basin, Jan. 31, 1975, Cambodia-Laos-Vietnam,

http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/155ENG.htm (last visited Nov. 27, 2004). 45 INT’L ASSOC. OF HYDROLOGISTS, INTERNATIONAL WORKSHOP ON MANAGING SHARED AQUIFERS RESOURCES IN AFRICA 1 (June 2-4, 2002),

http://www.iah.org/isarm/TripoliWorshopreport.doc (last visited Nov. 30, 2004). 46 WATER IN THE MIDDLE EAST: CONFLICT OR COOPERATION? (Thomas Naff & Ruth C. Matson eds., 1984). 47 Fadia Daibes, Water: The Blue Gold of the Middle East, PALESTINIAN ACADEMIC SOCIETY FOR THE STUDY OF INTERNATIONAL AFFAIRS, July

2002, at 3, http://www.passia.org 48 Id. 49 S. Burchi, supra note 3. 50 THE EUROPEAN UNION WFD 2000/60/EC, published in the Official Journal of the European Communities on 22 December 2000, (entered into

force on that date). found at http://www.europa.eu.int/eur-lex (last visited March 2003). The WFD sets out the following basic provisions in Article 4, 7 and 11. (i) Member States shall implement the measures necessary to prevent or limit the input of pollutants into groundwater and to prevent deterioration of the status of all bodies of groundwater, (ii) Member States shall also protect, enhance and restore all bodies of groundwater with the aim of achieving good status by 2015. (iii) Member States shall implement the measures necessary to reverse any significant and sustained upward trends in the concentration of any pollutant resulting from the impact of human activity in order to progressively reduce pollution of groundwater, (iv) Member States shall ensure the necessary protection for bodies of water used for the abstraction of water intended for human consumption or intended for such future use and they shall take measures to safeguard water quality in order to reduce the level of purification treatment required for the protection of drinking water, (v) Member States have to adopt a set of basic measures that shall include a prohibition of direct discharges of pollutants into groundwater. The basic definitions for good groundwater status are set out in Annex V of the WFD. Good groundwater chemical status is considered when the chemical composition of the groundwater body is such that the concentration of pollutants do not exhibit the effects of saline or other intrusions, and do not exceed the quality standards related to Article 17. The chemical compound of the groundwater body must not be such that would result in failure to achieve the good chemical or ecological status in associated surface waters nor any significant damage to terrestrial ecosystems depending on the groundwater body.

51 EUROPEAN FRESHWATER PROGRAM, found at www.wwfreshwater.org/initiative/wfd.html (last visited March 2003). 52 CHARTER ON GROUND-WATER MANAGEMENT as adopted by the Economic Commission for Europe at its forty-fourth session (1989) by decision

E (44) United Nations, New York, 1989 E/UNECE/1197, UNECE/ENVWA/12, found at

http://www.internationalwaterlaw.org/RegionalDocs/Groundwater_Charter.htm (last visited November 2003).

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The African Water Act of 199853 is another illustrative example for a national code that integrates surface and groundwater. Other illustrative examples on modern national regulations trends were cited in Europe, the Middle East and Africa. This research finds that the intimate relationship between groundwater and surface water and the environment coupled with the distinct features, issues and concerns relating to groundwater complicate the task of management and protection of these resources in an integrated manner. Whilst it is essential to realize that groundwater cannot be managed in isolation from the other elements of the environment especially surface water, there is a clear need for a tailor-made legal response for groundwater that adequately responds to its special features. There are two main features relating to groundwaters that need to be apprehended; they cross borders unhindered and they are susceptible to pollution and depletion. Such resources cannot be replaced and once polluted or depleted losses are frequently irreversible. The qualitative and quantitative characteristics of groundwater are found to be affected by a number of factors that are either a function of space or of time or the two together. The aquifer geometry (extension and thickness), the hydrogeologic properties of the aquifer formation, soil characteristics and climate are examples of natural/physical factors. Man made activities in the main recharge areas, are as well significant factors that need to be considered; these include land use, industrial and urban development activities in addition to in-situ waste disposal and/or main water leakage and overexploitation. This chapter demonstrates that prerequisite for regulating and imposing legal regimes in the case of groundwater is a proper understanding of natural and induced conditions of the aquifer systems and their surrounding environments. The “Drainage Basin” concept appears to incorporate all the natural and induced factors mentioned in the context of physically connected surface and groundwater. The analysis of modern trends in national groundwater regulations demonstrates that there is an increasing awareness of the emerging water crises and the urgent need to preserve these resources. The analysis also finds that there are some common denominators in the relevant state practice at the national level in selected regions-those could be summarized in (i) the adoption of the “River Basin” concept, as it has been employed in national regulations since more than 70 years with the aim to achieve an integrated water resources management (ii) the permitting or licensing systems (iii) the declaration of protection zones (iv) the economic and financial instruments and incentives and (v) the development of monitoring, assessment and control systems. In a transboundary context, decisions and responses require two or more States to undertake, with the possibly that two or more legal regimes are involved. The envisaged problems at this preliminary stage between national and transboundary groundwaters lie in the willingness of States to accept that the notions of groundwater regulations that apply on their domestic groundwaters can be as well adapted at the international levels.

3 TRANSBOUNDARY GROUNDWATER LAW- SUBSTANTIVE AND PROCEDURAL RULES

3.1 Background When investigating the primary sources of international law governing transboundary groundwater, and considering the lack of a “multilateral law making treaty,” the work of international organizations and expert groups in the field comprises a first step in that endeavour. This covers the work of the International Law Institute (“IDI”),54 the International Law Association (“ILA”),55 and the International Law Commission (“ILC”),56 and the work of the expert-group on the Bellagio Draft Treaty.57 This article proposes that the work of these institutions and groups is evidence of the law, especially the work of the ILC due to its authoritative institutional character. Other subsidiary legal sources include arbitration and judicial decisions, non-binding international declarations, statements and resolutions. 3.2 Scope and Use of Terms The “scope and use of terms” is a critical element in determining “what” waters a legal arrangement includes, and “which” areas it regulates. Accordingly, the definition of this element in a specific legal instrument is a determining factor in whether or not transboundary groundwater is covered and ipso facto the manner in which it is treated. In the context of this research, the key issues that need to be investigated are: (i) whether or not including transboundary groundwater within the scope of an international watercourse agreement is a common practice that states accept, and (ii) whether or not such waters include connected as well as confined transboundary groundwater. The answers to these

53 THE AFRICAN WATER ACT OF 1998, found at www.dundee.ac.uk/law/iwrli/Research_Document_National.html (last visited May 2003).

54 ENCYCLOPAEDIA BRITANNICA ONLINE, Institute of International Law (2004) (explaining that the IDI (Institut de Droit International) was established “in Ghent, Belgium, in 1873 to develop and implement international law as a codified science”), at http://www.britannica.com/eb/article?tocld=9097131 (last accessed Oct. 15, 2004).

55 INT’L LAW ASS’N, HISTORY OF THE ILA (explaining the foundation of the Association for the Reform and Codification of the Law of Nations, later renamed the International Law Association, in Brussels in October 1873. Its objects include: “the study, elucidation and advancement of international law, public and private, the study of comparative law, the making of proposals for the solution of conflicts of law and for the unification of law, and the furthering of international understanding and goodwill”), at http://www.ila-hq.org/html/layout_about.htm (last visited Sept. 2003).

56 See INT’L LAW COMM’N, INTRODUCTION (explaining that the General Assembly established the International Law Commission in 1947 “to promote the progressive development of international law and its codification”), at http://www.un.org/law/ilc/introfra.htm (last visited Jan. 2003).

57 See generally Hayton & Utton, supra note 21 (examining the work done on the Bellagio Draft Treaty).

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two main questions lies within the work of the ILC, IDI, ILA and the Bellagio Draft Treaty, including the scope of the ILC 1991 and 1994 Draft Articles,58 and consequently the adopted 1997 United Nations Watercourses Convention.59 By and large, there is evidence that the term “watercourse system” was favoured by the ILC members and the state representatives in the comments and observations to the Draft.60 Many states avoided the concept of the “drainage basin” because, according to them, it induced problems related to states’ territorial sovereignty.61 An analysis of the work by the IDI, ILA and the expert group on the Bellagio Draft Treaty reveals some crucial differences in the treatment of scope and use of terms that govern the utilization and development of such resources. The 1961 IDI Salzburg Resolution62 and the 1966 ILA Helsinki Rules63 employed similar concepts that considered connected groundwater as an integral component of the hydrologic cycle, subject to the same principles and rules as the other physical components. In effect, these instruments did not include confined transboundary aquifers within their scope and, further, did not treat groundwater as a special component of the hydrological cycle. The 1986 ILA Seoul Rules,64 which are complimentary to the Helsinki Rules, were developed with a view that groundwater is special in its characteristics and behaviour and thus requires special treatment for management and protection.65 Moreover, the Seoul Rules include confined aquifers within their scope.66 The Bellagio Draft Treaty defined transboundary groundwater in the same manner as the 1986 Seoul Rules,67 thus including connected and disconnected aquifers within its scope. The Draft Treaty also introduced the term “underground environment,” which not only included “the quality and quantity of

58 Report of Int’l Law Comm’n on the Work of its 43d Session, 46 U.N. GAOR Supp. (No. 10), U.N. Doc. A/46/10 (1991), reprinted in [1991] 2

Y.B. Int’l L. Comm’n 1, U.N. Doc. A/CN.4/SER.A/1991/Add.1 [hereinafter 1991 Draft]. Part I embraced the introduction, which reflected the scope of the articles, use of terms, and watercourse agreements. Id. at 66. Part II incorporated the general principles namely equitable and reasonable utilization and participation, the obligation not to cause appreciable harm, the general obligation to cooperate, regular exchange of data and information and the relationship between uses. Id. at 67. Part III dealt with planned measures encompassing the obligations for information, notification and consultation as far as planned measures are concerned. Id. at 67-68. Part IV handled the issues of protection and preservation of the ecosystems, prevention and control of pollution. Id. at 68. Part V harmful conditions and emergency situations. Id. at 69. Finally, Part VI included some miscellaneous provisions on management, regulation, installations, international watercourses and installations in times of armed conflicts, data and information vital to national defence or security and non-discrimination. Id. at 69-70. Report of the Int’l Law Comm’n on the Work of its 46th Session, 49 U.N. GAOR Supp. (No. 10), U.N. Doc. A/49/10 (1994), reprinted in [1994] 2 Y.B. Int’l L. Comm’n 88, U.N. Doc. A/CN.4/SER.A/1994/Add.1[hereinafter 1994 Draft] (including the ILC’s report to the Secretary General of the U.N. on the Law of Non-Navigational Uses of International Watercourses, available at http://www.un.org/law/ilc/texts/94nonnav.pdf#pagemode=bookmarks (last visited Nov. 28, 2004)).

59 United Nations: Convention on the Law of the Non-navigational Uses of International Watercourses, May 21, 1997, 36 I.L.M. 700 [hereinafter 1997 U.N. Watercourses Convention]. A majority of States voted in favour of the Convention (103) indicating that the rules embodied in the Convention were acceptable; only three States voted against (Burundi, China and Turkey) and 27 abstained: Andorra, Argentina, Azerbaijan, Belgium, Bolivia, Bulgaria, Columbia, Cuba, Ecuador, Egypt, Ethiopia, France, Ghana, Guatemala, India, Israel, Mali, Monaco. Mongolia, Pakistan, Panama, Paraguay, Peru, Rwanda, Spain, Tanzania, and Uzbekistan. Id. Article 36 of the Convention stipulates that it would require 35 instruments of ratification, acceptance, approval or accession for the Convention to enter force. Id. at 715.

60 Convention on the Law of the Non-Navigational Uses of International Watercourses: Comments and Observations Received from States, U.N. GAOR, 51st Sess., Provisional Agenda Item 146, at 3, U.N. Doc. A/51/275/Add.1 (1996) [hereinafter Convention on Non-Navigational Uses] (describing Italy’s support for the term “international watercourse); Convention on the Law of the Non-Navigational Uses of International Watercourses: Draft Articles on the Law of Non-Navigational Uses of International Watercourses and Resolution on Confined Transboundary Groundwater, U.N. GAOR, 51st Sess., Provisional Agenda Item 146, at 21-24, U.N. Doc. A/51/275 (1996) [hereinafter Draft Articles] (explaining Venezuela, Finland, Hungary, Portugal, and Turkey’s support for the concept of an international watercourse). As of 15 June 1976, 32 Member States have submitted replies to the questionnaire formulated by the Commission in 1974. See The Law on the Non-Navigational Uses of International Watercourses: Comments and Observations Received from Governments, 45th Sess., Agenda Item 4, at 145, U.N. Doc. A/CN.4/447, reprinted in [1993] 2 Y.B. Int’l L. Comm’n 145, U.N. Doc. A/CN.4/SER.A/1993/Add.1 (providing details of the member states comments).

61 See, e.g., Draft Articles, supra note 60, at 21-22 (stating both Columbia and Ethiopia’s opposition to groundwater regulation on the grounds of national sovereignty).

62Utilisation des Eaux Internationales Non Maritimes (en Dehors de la Navigation) [Utilisation of Non-maritime International Waters (Except for Navigation)] (Sept. 11,1961), http://www.idi-iil.org/idiF/navig_chron1953.html [hereinafter Salzburg Resolution]. The Resolution was passed by a vote of 50 to 0, with 1 abstention. Draft Articles, supra note 55, at 38 n.115. The Salzburg Resolution applies to the “utilization of waters which form part of a watercourse or hydrographic basin which extends over the territory of two or more States.” Salzburg Resolution, supra, at art. 1. Transboundary groundwater is implicitly embedded in the hydrographic basin and does not respond to the special requirements of these resources. Accordingly, the Resolution is only considered an adequate foundation for the formulation of more specialized rules at the international level concerning groundwater.

63 INT’L LAW ASS’N, Helsinki Rules on the Uses of the Waters of International Rivers, in REPORT OF THE FIFTY-SECOND CONFERENCE HELD AT HELSINKI 477, 484-85 (1967) [hereinafter Helsinki Rules], available at http://www.internationalwaterlaw.org/IntlDocs/Helsinki_Rules.htm. Article II of the Rules identifies the Drainage Basin as : “a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus.” Id. at 484-85. “The underground waters constituting a part of the drainage basin described in this article are those that contribute to the drainage basin principal river, stream or lake or other common terminus.” Id. at 485.

64 INT’L LAW ASS’N, Rules on International Groundwater, in REPORT OF THE SIXTY-SECOND CONFERENCE HELD AT SEOUL 251, 251 (1987) [hereinafter Seoul Rules]. The term “aquifer” employed in the Seoul Rules “comprehends all underground water bearing strata capable of yielding water on a practicable basis, whether these are in other instruments or contexts called by another name such as ‘groundwater reservoir’, ‘groundwater catchment area,’ etc. including the waters in fissured rock formations and the structures containing deep, so-called ‘fossil waters.’” Id.

65 See. id at 259-71 (addressing a variety of ways to acknowledge the importance of international protection of groundwater). 66 Id. at 259. ( stating “[a]n aquifer intersected by the boundary between two or more States that does not contribute water to, or receive water

from, surface waters of an international drainage basin constitutes an international drainage basin for the purpose of the Helsinki Rules.”). 67 Hayton & Utton, supra note 21, at 679. Article I(1), of the Bellagio Draft Treaty, identifies “Aquifer” as: “a subsurface water bearing geologic

formation from which significant quantities of water may be extracted.” Id. at 677. Article 1 (20) identifies a “Transboundary aquifer” as “an aquifer intersected by a common boundary.” Id. at 679. The commentary to Article I explains that the term “aquifer” “comprehends all underground water-bearing strata capable of yielding water on a practicable basis, whether these are in other instruments or contexts called by another name such as ‘groundwater reservoir,’ ‘groundwater catchment area,’ etc. including the waters in fissured or fractured rock formations and the structures containing deep, so called ‘fossil waters.’” Id.

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waters, but, inter alia, the geologic structure of the water body, the aquifer itself” affecting these properties.68 The “Resolution on Confined Transboundary Aquifers,” which the ILC adopted in conjunction with the 1994 Draft Articles, included confined aquifers within the scope of its application.69 This Resolution was not adopted as part of the final text of the United Nations Watercourses Convention. In May 2003 the ILC returned to the question of transboundary confined aquifers. In his first report on “Shared Natural Resources,” Chusei Yamada, the special Rapporteur, emphasized that “[i]n order to formulate rules regulating confined transboundary groundwaters, we must have an inventory of these resources worldwide and a breakdown of the different regional characteristics of the resources. National, regional and international organizations are currently studying and assessing such major aquifer systems.”70 He further emphasized the need for a multitude of studies to be conducted, which include:

(a) Socio-economic importance: groundwater is becoming increasingly important for all populations, but particularly for the populations of the developing world. The development aspects of groundwater are being extensively studied by the World Bank Groundwater Management Advisory Team; (b) The practice of states with respect to use and management; (c) Contamination: causes and activities which adversely affect the resources as well as its prevention and remedial measures; (d) Cases of conflicts; (e) Legal aspects: existing domestic legislation and international agreements for management of the resources; (f) Bibliography of materials of direct relevance to the work of the Commission [ILC].71

The next sections examine the relevance of the codification and progressive development undertaken by the various institutions mentioned above.

3.3 Substantive Rules Substantive rules within a specific legal arrangement determine the rights and duties of states towards each other, the violation of which raises liability. The key issues to be investigated in the context of transboundary groundwater are: (i) what are these rules and to what extent they present rules of customary international law; and (ii) the evolution of these rules in the work of the ILC, IDI, ILA and the Bellagio Draft Treaty. Having reviewed the work of these organizations, there is a collective agreement that the right for using the waters of international watercourse derives from the fundamental right of states to equitably use waters that traverse or border their territory. The extent to which the obligation not to cause a certain degree of harm limits this right varies from one approach to another. The 1991 and 1994 Draft Articles, which apply equally to surface water and connected transboundary groundwater, considered equitable utilization a fundamental principle of customary international law.72 Both drafts, however, gave primacy to the “no harm” rule over the principle of equitable and reasonable utilization.73 This was corrected in the final text of the 1997 United Nations Watercourses Convention, whereby the equitable and reasonable utilization principle became predominant, although it included a factor related to the degree of harm.74 Under the Salzburg Resolution, the general principle governing neighbourly relations and the use of shared waters in particular was the obligation not to cause “unlawful harm” to others.75 In its approach, the Resolution applied the “limited sovereignty theory” by limiting the right of use of any state to the waters flowing across or bordering its territory by the right of use by the other states concerned with the same river or “hydrographic basin.”76 When utilizing the waters, states are obliged not to seriously affect the possibility of other states utilizing the same waters.77 In the case of serious damage or loss, states causing the harm are obliged to ensure the affected state or states enjoy the advantages

68 Id. at 683.

69 1994 Draft, supra note 58, at 154-55. 70 Chusei Yamada, Special Rapporteur, Shared Natural Resources:First Report on Outlines, U.N. GAOR 55th Sess., ¶ 24, U.N. Doc. A/CN.4/533

(2003). 71 Id. ¶ 25.

72 1991 Draft, supra note 53, at 67 (stating “1. Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimum utilization thereof and benefits therefrom consistent with adequate protection of the watercourse. 2. Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present articles.”).

73 Id. at 68 (stating “[w]atercourse States shall utilize an international watercourse in such a way as not to cause appreciable harm to other watercourse States.”).

74 1997 U.N. Watercourses Convention, supra note 59, at 706 (stating “2. Where significant harm nevertheless is caused to another watercourse State, the States, whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.”).

75 Salzburg Resolution, supra note 62, pmbl. paras. 3, 4. 76 Id. art. 2 (stating “ [e]very State has the right to utilize waters which traverse or border its territory, subject to the limits imposed by international

law and, in particular, those resulting from the provisions which follow.”). 77 Id. art. 4. (stating “[n]o State can undertake works or utilizations of the waters of a watercourse or hydrographic basin which seriously affect the

possibility of utilization of the same waters by other States except on condition of assuring them the enjoyment of the advantages to which they are entitled under article 3, as well as adequate compensation for any loss or damage.”).

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of their utilization rights “on the basis of equity, taking particular account of their respective needs” and “other pertinent circumstances.”78 The affected state is also entitled to adequate compensation.79 Equitable and reasonable utilization govern within the 1966 Helsinki Rules and all of the work by the ILA. Article V lists the factors determining equitable and reasonable sharing, whereby harm is only one factor.80 Under the 1966 Helsinki Rules, pollution is viewed to constrain the beneficial and equitable utilization of such waters and therefore there is an obligation to abate pollution.81 As for the Seoul Rules, they clearly state the same principles that govern utilization in the 1966 Helsinki Rules equally apply to transboundary groundwater.82 The principle of equitable and reasonable utilization and the no harm rule govern in the Bellagio Draft Treaty.83

3.4 Procedural Rules Procedural rules are essential in any watercourse agreement. They provide the means through which the substantive rules are implemented. The distinction between the “substantive” and “procedural” obligations is made mostly for analytical purposes to better understand the treaty structure and requirements. This does not mean “procedural” obligations are less binding than “substantive” obligations. Procedural rules encompass a range of obligations from a general duty to cooperate, to obligations concerning data and information exchange, prior notification and consultations. By and large, the above legal instruments have common denominators as far as procedural rules are concerned. These procedures establish adequate mechanisms for cooperation with a special emphasis on the generation of a reliable database at the national level, and the maintenance of adequate information exchange at the international level. The basic procedural rules that are considered obligatory for connected transboundary groundwater are the duty to exchange information and prior notification. Based on the research undertaken, cooperation in itself does not have a normative content. It is a duty that derives from the general principles of sovereign equality, territorial integrity, mutual benefit and the good faith of states. States are further encouraged based on their “good faith” to consult and negotiate. The procedural rules within the 1991 Draft were embodied in Articles 9 through 19. These procedures were a natural consequence of the obligation to cooperate that is embodied in Article 8 within the duty to cooperate.84 The eleven articles are considered a road map for states to implement equitable and reasonable utilization of their shared watercourses, including connected transboundary groundwater.85 The procedural rules within the 1994 Draft, found in Articles 9 to 19, did not vary much from those of the 1991 Draft. Procedures relating to the exchange of data, prior notification and prior consultation on planned measures in the 1994 Draft were similar to those found in the 1991 Draft Articles. According to paragraph 2 of the commentary on Article 12, these procedures were “triggered by the criterion that measures planned by a watercourse [s]tate may have a significant adverse effect upon other watercourse [s]tates.”86 Paragraph 1 of Article 8 on the duty to cooperate remained almost the same as it was in the 1994 Draft.87 The 1961 Salzburg Resolution emphasised the need for consultation, joint planning and the application of the principle of reciprocity among the states sharing these resources to promote a more rational exploitation of natural resources.88 The 1961 Salzburg Resolution considered notification at the heart of the procedural rules, recommending states not

78 Id. art. 3, 4. 79 The requirement of compensation is however not an established principle in international law. See The Right to Utilize the Waters of

International Rivers, in INTERNATIONAL WATER LAW: SELECTED WRITINGS OF PROFESSOR CHARLES B. BOURNE, supra note 27, at 82 (arguing that compensation is not obligatory).

80 Helsinki Rules, supra note 63, at 488 (stating “(1) What is a reasonable and equitable share within the meaning of Article IV to be determined in the light of all the relevant factors in each particular case. (2) Relevant factors which are to be considered include, but are not limited to: (a) the geography of the basin, including in particular the extent of the drainage area in the territory of each basin State; (b) the hydrology of the basin, including in particular the contribution of water by each basin State; (c) the climate affecting the basin; (d) the past utilization of the waters of the basin, including in particular existing utilization; (e) the economic and social needs of each basin State; (f) the population dependent on the waters of the basin in each basin State; (g) the comparative costs of alternative means of satisfying the economic and social needs of each basin State; (h) the availability of other resources; (i) the avoidance of unnecessary waste in the utilization of waters of the basin; (j) the practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses; and (k) the degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State. (3) The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is reasonable and equitable share, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.”).

81 Id. at 494-97. 82 Seoul Rules, supra note 64, at 259. See also BOGDANOVIC, supra note 10, at 342. 83 Hayton & Utton, supra note 21, at 676, 691. The Parties enter the Draft Agreement “[s]eeking to provide for the utilization, protection and

control of those groundwaters on an equitable basis and, to that end, for the creation and maintenance of an adequate data base...” Id. at 676. In addition, “[t]he Parties undertake cooperatively to protect and to improve, insofar as practicable, the quality of transboundary aquifers and their waters in conjunction with their programs for surface water quality control, and to avoid appreciable harm in or to the territories of the Parties.” Id. at 691.

841991 Draft, supra note 53, at 67 (stating “[w]atercourse States shall cooperate on the basis of sovereign equality, territorial integrity and mutual benefit in order to attain optimal utilization and adequate protection of an international watercourse.”).

85 See, e.g., Charter of Economic Rights and Duties of States, G.A. Res. 3281, U.N. GAOR, 29th Sess., Supp. No. 31, at 52 (1974), http://www.un.org/Depts/dhl/resguide/resins.htm ( stating “[i]n the exploitation of natural resources shared by two or more countries, each State must co-operate on the basis of a system of information and prior consultations in order to achieve optimum use of such resources without causing damage to the legitimate interest of others.” The United States Mexico on co-operation of 1983 is an example of the importance of cooperation for the protection, improvement and conservation of the environment and the problems, which affect it.

86 1994 Draft, supra note 58, at 75. 87 Compare 1991 Draft, supra note 58, at 67, with 1994 Draft, supra note 58, at 56-57.

88 Salzburg Resolution, supra note 62, pmbl. paras. 1-6.

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undertake utilizations or works without a previous notice to interested states.89 The Resolution did not refer to a specific period for the reply but mentioned that it must be within a reasonable time.90 Procedural rules in the1966 Helsinki Rules were referred to as “preventive measures,” which encompassed the exchange of relevant and reasonably available information among Co-Basin States concerning the “Hydrographic Basin” and its use of, and activities with respect to such waters.91 Prior notification of any proposed construction or installation that would affect the regime of the basin and might give rise to conflict was recommended.92 The same procedural rules that applied within the 1966 Helsinki Rules equally applied in the Seoul complimentary Rules.93 The Seoul Rules provided that in order to realise the objectives of the rules,94 “Basin States shall consult and exchange relevant available information and data...”95 Basin States were also recommended to cooperate “for the purpose of collecting and analyzing additional needed information and data pertinent to the international groundwaters or their aquifers.”96 Consultation and exchange of relevant information are essential procedures in the context of pollution prevention or abatement of international groundwater.97 The Bellagio Draft Treaty offered the comprehensive integrated approach to defining what rules of procedures were needed to ensure successful implementation of the Treaty.98 These were tailor-made for transboundary groundwater99 and, therefore, constitute an important, relevant guide for developing procedural rules on transboundary groundwater. The Draft Treaty, similar to the ILA Rules, urged states to “develop and maintain reliable data and information concerning transboundary aquifers and their waters in order to use and protect these waters in a rational and informed manner.”100 Article V was devoted to the “Establishment and Maintenance of the Database.”101 It provided that “[t]he Commission [was] charged with the creation and maintenance of a comprehensive and unified database pertaining to transboundary groundwaters, in the languages of the Parties.”102 Greater knowledge about the quality and quantity of transboundary groundwater is essential for the improvement of the management of such resources.103 “Regular and systematic collection of hydrometeorological, hydrological and hydrogeological data needs to be promoted and be accompanied by a system for processing quantitative and qualitative information for various types of water bodies.”104 In order to fulfil the objectives of data and information exchange between watercourse states, the Draft Treaty called for countries to:

[e]stablish observation networks and strengthen existing systems and facilities for measurements and recording fluctuations in groundwater quality and level; organize the collection of all existing data on ground water (borehole logs, geological structure, and hydrogeological characteristics, etc.); systematically index such data, and attempt a quantitative assessment so as to determine the present status of and gaps in knowledge; increase the search for, and determination of, the variables of aquifers105

Prompt notification of any actual or planned activity that might cause “appreciable harm” on the transboundary groundwaters or recharge areas was meant to ensure groundwater quality and quantity protection.106 Also, as part of the quality and quantity conservation plan, any area within the border region containing transboundary groundwaters would be declared a Transboundary Groundwater Conservation Area, which would be determined based on selected criteria.107

89 Id. art. 5. 90 Id. art. 6. 91 Helsinki Rules, supra note 63, at 518-19.

92 Id. at 518. 93 See Seoul Rules, supra note 64, at 252.

94 The objective of the Seoul Rules stipulated in Article 3 is: to “prevent or abate the pollution of international groundwaters” with special emphasis on long-term pollution. Id. at 268.

95 Id. 96 Id. at 268. Article 3 states: “2. Basin States shall consult and exchange relevant available information and data at the request of any of them (a)

for the purpose of preserving the groundwaters of the basin from degradation and protecting from impairment of geologic structure of the aquifers, including recharge areas; (b) for the purpose of considering joint or parallel quality standards and environmental protection measures applicable to international groundwaters and their aquifers. Id.

97 See id. at 269-70. 98 See Hayton & Utton, supra note 21, at 663. 99 Id. at 676.

95 Id. at 682-83. 101 Id. at 688. 102 Id. 103 Id. at 689-90.

104 Id. 105 Id. at 690.

106 Id. at 691 (stating “1. The Parties undertake cooperatively to protect and to improve, insofar as practicable, the quality of transboundary aquifers and their waters in conjunction with their programs for surface water quality control, and to avoid appreciable harm in or to the territories of the Parties. 2. The Governments shall promptly inform the Commission of any actual or planned, significantly polluting discharge into transboundary groundwaters or recharge areas, or of other activity with the potential for significant leaching into transboundary groundwaters.”) (emphasis added).

107 Id. at 692-93 (listing the factors considered by the Commission when making their determination, such as “a. [whether] groundwater withdrawals exceed or are to exceed recharge so as to endanger yield or water quality or are likely to diminish water, the quantity or quality of interrelated surface waters; b. recharge has been or may become impaired; c. the use of the included aquifer(s) as an important source of drinking

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Preparing a Comprehensive Management Plan was recommended for each declaration of a Transboundary Groundwater Conservation Area to guarantee “the rational development, use, protection and control of the waters in the Transboundary Groundwater Conservation Area.”108 The Master Plan was to include a description of what measures were needed, (i) “to prevent, eliminate or mitigate degradation of transboundary groundwater quality” and quantity;109 (ii) “to allocate the uses of groundwaters and interrelated surface waters taking into account the other allocation(s) previously made applicable within the Transboundary Groundwater Conservation Area;” 110 and to limit pumping, set a “criteria for well placement and number of wells,” decisions on “retirement of existing wells, imposition of extraction fees, [and] planned depletion regimes or reservations of groundwaters for future use.” 111

3.5 Institutional and Dispute Settlement Mechanisms Institutions are the vehicles for cooperation; thus, they can also be a platform for dispute resolution.112 In fact, it is a relatively common feature of legal arrangements established to manage the transboundary watercourses. The functions and authorities of the institutions established to implement the obligations under the legal arrangement may range from pure technical cooperation to full authority over water management and protection plans and activities.113 The territorial responsibilities may include the whole drainage basin, including surface waters, ground water, or both; more than one drainage basin (multi-basin); part of a drainage basin (sub-basin); an area otherwise defined and clearly delimited; or all or part of boundary waters. The institutional mechanism may consist of a permanent joint body,114 a joint commission that convenes on a regular basis,115 or regular meetings of national representatives. Article 33 of the Charter of the United Nations addresses dispute settlement of an international watercourse when states disagree about the utilization of the waters of an international watercourse.116 The provision encourages states to seek a solution through a variety of methods, including mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or peaceful means of their own choice.117 In the context of this research, one of the key issues is to understand whether or not there is a customary duty to establish mechanisms for institutional cooperation and for dispute settlement. It is essential to understand how the various codification and progressive development attempts addressed these issues and what guidance they provide in the case of transboundary groundwater. The 1994 Draft Articles and the 1997 United Nations Watercourses Convention encouraged the establishment of proper institutional mechanisms to facilitate the implementation of the legal arrangements.118 The final text of the 1997 United Nations Watercourses Convention did not include details on types of organizational structures of such institutions, because it left those up to the discretion of states involved.119 Additionally, the Convention introduced the dispute settlement mechanisms as compulsory provisions, thus presenting the ILC with highly controversial and progressive developments.120

water has been, or may become impaired; d. the aquifer(s) have been or may become contaminated; and e. recurring or persistent drought conditions necessitate management of all or some water supplies in the particular area.”).

108 Id. at 695. This article includes a list of possible elements to be included in the Plan. Allocation of uses under the Plan shall take into account some factors listed under article VIII, paragraph 3. This list to determine equitable use is based on the 1966 Helsinki Rules factors and the Third Report of the Special Rapporteur, Stephen Schwebel. Id. at 699-701. The factors include “a. hydrogeology and meteorology; b. existing and planned uses; c. environmental sensitivity; d. quality control requirements; e. socio-economic implications (including dependency); f. water conservation practices (including efficiency of water use); e.g., artificial recharge potential; and h. comparative costs and implications of alternative sources of supply. The weight to be given to each factor is to be determined by its importance in comparison with that of the other relevant factors.” Id. at 696-97.

109 Id. at 696 (including measures, such as the classification, assessment and monitoring of transboundary groundwaters according to use and establishing criteria for safe storage of all possible sources that may cause pollution to aquifers, monitoring of water quality, providing the requirement for establishing protection zones).

110 Id. 111 Id. When planning depletions, “[t]he Commission, after evaluation of all relevant considerations, may prepare and, with the consent of the

Governments, may approve a plan for the depletion of an aquifer over a calculated period. The plan may apportion the uses and specify the rates and means of extraction of the transboundary groundwaters, and may authorize advances, exchanges and transboundary transfers of water consistent with the objectives of the Depletion Plan.” Id. at 703.

112 See U.N. DEP’T OF ECON. & SOC. AFFAIRS, supra note 20, 27-28. 113 Id. 114 See, e.g., Agreement for the Establishment of the Organization for the Management and Development of the Kagera River Basin, Aug. 24, 1977,

Rwanda-Burundi-Tanz., (entered into force Feb. 5, 1978), http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/200ENG.pdf; Convention Relating to the Status of the River Gambia, June 30, 1978, Gam.-Guinea-Sen., http:ocid.nacse.org/qml/research/tfdd/toTFDDdocs/263ENG.htm (establishing permanent committees).

115 See, e.g., Agreement Between the Government of the Federal People’s Republic of Yugoslavia and the Government of the People’s Republic of Albania Concerning Water Economy Questions, Together With the Statute of the Yugoslav-Albanian Water Economic Commission and With the Protocol Concerning Fishing in Frontier Lakes and Rivers, Dec. 5, 1956, Alb.-Yugoslavia, art. 7 (entered into force on Aug. 6, 1957), http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/97ENG.htm ; Agreement Between the Republic of Syria and the Hashemite Kingdom of Jordan Concerning the Utilization of the Yarmuk Waters, June 4, 1953, Jordan-Syria, art. 10 (a)-(j) (entered into force on July 8, 1953), http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/82ENG.htm (establishing joint committees convened on a regular basis).

1161997 U.N. Watercourses Convention, supra note 59, at 713-14. 117 Id. 118 Id. at 703; 1994 Draft, supra note 58, at 11-12. 119 See 1997 U.N. Watercourses Convention, supra note 59, at 704-05. 120 Id. at 713-14.

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The 1961 IDI Salzburg Resolution offered only minimal guidance on the type and structure of institutions responsible for the implementation of the agreements.121 However, the recommendation was clear regarding the establishment of a joint institution to implement the agreement.122 The 1966 ILA Helsinki Rules did not include a section on institutional mechanisms, although the section on the prevention and settlement of disputes discussed the role of joint agency.123 Such an institution was envisaged to play a role in situations of conflict. The Draft Treaty encouraged Basin States to establish a “Joint Commission” responsible for the implementation of an agreement that would include responsibility for all transboundary groundwaters related matters.124 The Joint Commission was mandated to undertake a variety of tasks and functions to fulfil the requirements of the Draft Treaty.125

4 TRANSBOUNDARY GROUNDWATER LAW IN STATE PRACTICE

4.1 Introduction Whilst states have concluded thousands of treaties on international watercourses, state treaty practice is still unclear concerning transboundary groundwater. States can choose to be a party to a various range of arrangements, both formal and informal. Additionally, States can enter into non-binding cooperation arrangements. This fact greatly complicates the task of assessing what constitutes state practice. In the absence of formal agreements, states appear satisfied to maintain less formal co-operation arrangements. Bilateral and multilateral agreements between states are usually good evidence of states’ willingness and acceptance to abide by the rules and principles embodied within these agreements. The significance of treaties derives from the fact that they are not created in vacuum; rather, they are the accumulation and conglomeration of norms, customs and general principles.126 Notwithstanding the foregoing, and given the wide range of agreements that states can participate in, treaties do not necessarily always contribute to the formulation of international legal rules or principles, nor do they always codify an existing custom.127 With the exception of jus cogens, states might agree to replace or modify a recognized general rule with a particular rule by special agreement. Other types of treaties aim to confirm general rules or to apply these rules. The goal within this area of research is to identify where treaties or other types of state cooperation could be of significant contribution to the codification and progressive development of international law relating to the use of shared transboundary groundwaters.128 In the absence of formal treaties, there is an emerging trend to establish technical, informal and non-binding networks and cooperative frameworks. Such arrangements rely primarily on the morals and ethics of states and their recognition of the need for such cooperation.

4.2 State Practice in Africa Europe and the Middle East By and large, the treaty survey demonstrates that states appear rarely to devote special attention to the regulation of their transboundary groundwater. If states include it within the scope of international arrangements, they evidently treated groundwater resources similarly to surface water. The increased knowledge and awareness of the special characteristics and behaviours of groundwater have not yet triggered the formulation of international treaties that specifically regulate the utilization, development and protection of these resources. This survey also reveals that only “connected” transboundary groundwater is included within the scope of the existing treaties. Confined transboundary aquifers remain formally unregulated. In Africa, where the water situation is not uniform across the country, state practices relating to transboundary groundwater vary. Generally, connected transboundary groundwater falls within the scope of international watercourse treaties. The adoption of the Revised Protocol on Shared Watercourses in the Southern African Development Community (“SADC”) in 2000 clearly signified this region’s position on the importance of transboundary groundwater129, yet the protocol treated it as surface water. As for Europe, recent treaties related to international

121 Salzburg Resolution, supra note 62, art. 9. 122 Id. 123 Helsinki Rules, supra note 63, at 524.

124 Hayton & Utton, supra note 21, at 684-85. “[T]he Parties may already have a joint international institution whose powers and functions may readily be expanded to deal with the added responsibilities of transnational groundwater. If no such institution is in place, or the Parties choose to create a separate commission or agency, the name to be given the new entity is, similarly, to be inserted in Paragraph 1. In the case of the United States and Mexico, it is likely that the Parties would choose to designate their existing International Boundary and Water Commission, with which the Governments have a long and satisfactory experience.” Id.

125 Id. at 684. 126 See HAYTON, supra note 39, at 244-45. 127 See id. at 242-44. 128 See SECOND WORLD WATER FORUM, MINISTERIAL DECLARATION OF THE HAGUE ON WATER SECURITY IN THE 21ST CENTURY (Mar. 22,

2000), at http://www.waterunc.com/bg/secwwf12.htm (drawing attention to the problems of managing shared water resources to promote peaceful co-operation and develop synergies between “different users of water at all levels.” The promotion of peaceful resolution includes co-operation between adjacent states in the case of shared groundwater resources).

129 SOUTHERN AFRICAN DEVELOPMENT COMMUNITY: REVISED PROTOCOL ON SHARED WATERCOURSES , Aug. 7, 2000, pmbl. (replacing the Protocol that entered into force on Sept. 29 1998), [hereinafter SADC Protocol],

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watercourses increasingly recognised groundwater as an integral component of the whole water system. Accordingly, the integrated ecosystem approach to the management of these resources is becoming common.130 Although transboundary groundwater still requires a more specific response, the guidance that some of the UNECE multilateral conventions offered, such as the 1992 Helsinki Convention,131 the 1994 Danube,132 the 1998 Rhine Convention,133 is satisfactory. In the Middle East although groundwater constitutes a major water supply source, many of the aquifers shared by two States or more lack regulation.134 Apart from the recent agreements signed between Israel and its neighbours, Palestine and Jordan, which merely serve political purposes, no formal arrangement governs transboundary groundwaters in the region.135 As for the substantive rules, it appears the principle of territorial sovereignty is well founded in state practice. From this researcher’s perspective, this reflects the correlative rights of states under the equitable and reasonable utilization principle. In Africa, the balance between equitable and reasonable utilization and the obligation not to cause harm has explicitly favoured the equitable and reasonable principle, as the 1990 Niger -Nigeria Agreement136 and the Revised SADC Protocol demonstrated.137 In Europe, the equitable and reasonable utilization principle emerged after the 1990’s. Prior to that time, the focus was on transboundary impact and the obligation to limit such an impact. In the Middle East, the few examples reviewed illustrate a unique mode of cooperation due to the tense political situation. The region’s agreements appear to emphasize the “no harm” principle, while leaving the principle of equitable and reasonable utilization almost completely absent. The reviewed state treaty practice in the three selected regions provides some common denominators on procedural rules, at the heart of which lies cooperation.138 State treaty practice also includes a range of mechanisms to successfully implement and achieve the desired cooperation. These mechanisms include the duty to exchange information, prior notification and consultation. Consultation, as referred to in the various legal arrangements, is dependent on general principles of international law including good faith, neighbourliness and reciprocity. In Europe, existing treaties provide significant guidance for the progressive development of the law relating to transboundary groundwater. The concepts of protection or restricted zones, the joint monitoring and control on abstraction, human activity and pollution constitute innovative solutions that can be borrowed and adapted to suit the local conditions. The “precautionary” and “preventive” approaches that are common to most of the legal instruments address the most critical problem associated with groundwater, the irreversibility of damages and losses. These approaches are integral to attain efficient and optimum protection of transboundary groundwater. Most of the legal instruments and agreements analyzed for this study recognize the need for an appropriate institutional mechanism for the implementation of cooperation. To that end, states in the three selected regions resorted to different types of institutional mechanisms. Such mechanisms are classified into four main categories, (i) establishing mechanisms for regular meetings between the parties, (ii) making use of existing institutions, (iii) establishing new institutions, and (iv) encouraging the set up of proper mechanisms. The powers, structure and scope of work of such

http://www.dundee.ac.uk/law/iwlri/Documents/Treaties/Multilateral%20Treaties/2000%20Revised%20SADC%20Protocol.pdf (last visited Apr. 2003).

130 See UNITED NATIONS: CONVENTION ON THE PROTECTION AND USE OF TRANSBOUNDARY WATERCOURSES AND INTERNATIONAL LAKES, Mar. 17, 1992, 31 I.L.M 1312, 1315 [hereinafter 1992 Helsinki Convention].

131 Id. 132 See 1994 DANUBE CONVENTION, supra note 43, art. 6. The Danube River Basin is in the heartland of Central Europe. The main river is 2,850

km long and drains 800,000 km2 including all of Hungary; most part of Romania, Austria, Slovenia, Croatia and Slovakia; and significant parts of Bulgaria, Germany, the Czech Republic, Moldova and Ukraine. Territories of the Federal Republic of Yugoslavia, Bosnia and Herzegovina and small parts of Italy, Switzerland, Albania and Poland are also included in the basin. See RIVERNET, THE DANUBE, at http://www.rivernet.org/danube/basic.htm (last visited Nov. 12, 2004); REG’L ENVTL. CTR. FOR CENT. AND E. EUROPE, DANUBE COUNTRIES, at http://www.rec.org/DanubePCU/maps/countries.html (last visited Dec. 1, 2004).

133 Convention on the Protection of the Rhine, Jan. 22, 1998, art. 2 [hereinafter 1998 Rhine Convention], http://www.internationalwaterlaw.org/RegionalDocs/Rhine_River.htm (last visited May 2003). The river Rhine flows from its source in Switzerland through Germany, France and the Netherlands to the North Sea. It is the third largest river in Europe. The total length is 1,320 km and the catchment area is 185,000 km2. EVA-MARIA LEVERMANN, GOETHE INST., CLEANING UP ‘FATHER RHINE’ (Oct. 2003), at http://www.goethe.de/kug/ges/umw/thm/en62916.htm (last visited Dec. 1, 2004). The average discharge is 2,300 m3 per second and total volume per year is in average 70 km3. ANTON EARLE, THE WATER PAGE, THE RHINE RIVER (Sept. 2001), at http://www.thewaterpage.com/rhine_main.htm (last visited Dec. 1, 2004). At present, more than 50 million people live in the catchment in 9 countries, Switzerland, Austria, Liechtenstein, Italy, France, Germany, Luxembourg, Belgium and the Netherlands. Id.; LEVERMANN, supra. It provides the source for drinking-water production for more than 20 million people. EUROPEAN COMM’N, EUROPEAN CATCHMENTS: CATCHMENT CHANGES AND THEIR IMPACT ON THE COAST (EUROCAT), REBCAT: THE RHINE RIVER CATCHMENT, at http://www.iia-cnr.unical.it/EUROCAT/Rhine%20inglese.htm (last visited Dec. 1, 2004). The Convention stresses some principles mainly derived from international environmental law, such as the procedural principles that guide the implementation of the Convention, are the prevention principle, the precautionary principle, and the principle of polluter pays. 1998 Rhine Convention, art. 4 (a)-(b), (c).

134 See HAYTON, supra note 39, at 242. 135 See, e.g., id. at 239.

136 Agreement Between the Federal Republic of Nigeria and The Republic of Niger Concerning the Equitable Sharing in the Development, Conservation and Use of Their Common Water Resources, July 18, 1990, art. 2, 5[hereinafter 1990 Niger-Nigeria Agreement], http://www.fao.org/docrep/W7414B/w7414b10.htm (last visited Dec. 1, 2004).

137SADC Protocol, supra note 124, art. 2(b). 138 See, e.g., id. at pmbl. para. 4, art. 2; 1994 Danube Convention, supra note 43, at pmbl. para. 1, 4, art. 2(2), 4; Interim Agreement on the West

Bank and the Gaza Strip, Sept. 28, 1995, Isr.-P.L.O., ch. 4, sched. 8, 36 I.L.M. 551, 566-67, 632 [hereinafter Israel-P.L.O. Interim Agreement] (demonstrating mechanisms to facilitate cooperation).

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institutions range from one instrument to another. While some institutions have purely technical and supervisory functions,139 others have complete authority over the decision-making with regard to the implementation of the legal arrangement.140 Additionally, some of the legal instruments employ existing institutional mechanisms as the first resort for dispute settlement.141 For disputes that are not resolved by the respective institutional mechanisms the legal instruments most often offer a choice of one or a combination of three stepwise mechanisms for dispute settlement, mediation, conciliation and arbitration.

4.3 Informal States’ Cooperation In the absence of formal treaties, there is also an emerging trend to establish informal and technical networks and cooperative frameworks. In Africa, the latter trend is primarily observed in the context of transboundary confined groundwaters, a highly valuable resource no legally binding arrangement regulates.142 In Europe, however, these cooperative frameworks are emerging in the field of unregulated, connected transboundary groundwater. Europe increasingly realizes the need to build knowledge and awareness about their shared transboundary groundwaters, but not in the form of a binding treaty yet.143 As for the Middle East, some have made efforts to bring the Israeli, Palestinians and Jordanians into a semi-informal form of cooperation. 144 Especially in countries where the

139 See, e.g., Treaty Between the Hungarian People's Republic and the Republic of Austria Concerning the Regulation of Water Economy Questions

in The Frontier Region, Apr. 9, 1956, art. 12-13 (entered into force on July 31, 1956) (establishing a joint technical committee), http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/94ENG.htm (last visited Oct. 24, 2004); Israel-P.L.O. Interim Agreement, supra note 138, sched. 8-9, 632-33 (establishing a joint supervisory committee).

140 See, e.g., Treaty Between Germany and Poland for the Settlement of Frontier Questions, Jan. 27, 1926, art. 39 (establishing a Boundary Commission with the power to make decisions binding both parties), http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/35ENG.htm (last visited Oct. 24, 2004); Protocol to Establish a Tripartite Standing Committee on Polluted Waters, Apr. 8, 1950, Belg.-Fr.-Lux.(establishing a Tripartite Standing Committee with the power to determine legal responsibilities of member states), http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/284ENG.pdf (last visited Oct. 24, 2004); Convention Creating the Niger Basin Authority, Nov. 21, 1980, art. 4 (establishing an authority with the power to design and implement policies regarding surface and groundwater use), ocid.nacse.org/qml/research/tfdd/toTFDDdocs/374ENG.htm (last visited Oct. 24, 2004); 1992 Helsinki Convention, supra note 130, at 1319-20 (providing for the establishment of joint bodies with the authority to establish emissions limits, water quality objectives and action programs).

141 See, e.g., Convention and Statutes Relating to the Development of the Chad Basin, May 22, 1964, art. 9(g) [hereinafter the 1964 Chad Convention], http://www.fao.org/Legal/treaties/treaty-e.htm (last visited Oct. 24, 2004) (establishing the Chad Basin Commission with the authority to examine complaints and assist in settling disputes); 1990 Niger-Nigeria Agreement, supra note 136, art. 17 (requiring referral of differences in interpretation of the Agreement, or equitable sharing determinations “to the Nigeria-Niger Joint Commission for Co-operation”).

142 In Africa the cooperative frameworks have been established for the Nubian Sandstone Aquifer System (“NSAS”), which is a huge confined aquifer, located in the eastern Sahara desert in northeastern Africa. CEDARE, NUBIAN SANDSTONE AQUIFER PROGRAMME, at http://www.cedare.org.eg/nubian/ (last updated Oct. 14, 2004); CEDARE, NUBIAN SANDSTONE AQUIFER, NATIONAL INSTITUTIONS, at http://www.cedare.org.eg/nubian/project/National-inst.htm (last visited Dec. 1, 2004). In the 1970’s, the States sharing the (NSAS) expressed their interest in regional cooperation to share experience and to study and develop this regional aquifer. The recent initiative to formulate a regional strategy for the utilization of the NSAS is a step towards the sustainable management of the aquifer, through the sharing of information, monitoring of the aquifer and the exchange of updated information on the behaviour of that shared resources. See CEDARE, NUBIAN SANDSTONE AQUIFER PROGRAMME, ACHIEVEMENTS, at http://www.cedare.org.eg/nubian/project/activities.htm (last visited Dec. 1, 2004). The four States sharing the NSAS have signed two agreements: one instrument related to the sharing of data incorporated in the regional information system. CEDARE, NUBIAN SANDSTONE AQUIFER PROGRAMME, REGIONAL COOPERATION, at http://www.cedare.org.eg/nubian/project/regional_coop.htm (last visited Dec. 1, 2004). The second agreement updated this information by continuous monitoring of the aquifer. Id. The most important achievement of these agreements was the revitalization of the Joint Authority on the NSAS “that was previously formed between Egypt, Libya, and later Sudan.” CEDARE, NUBIAN SANDSTONE AQUIFER PROGRAMME, ACHIEVEMENTS, at http://www.cedare.org.eg/nubian/project/activities.htm (last visited Dec. 1, 2004). “Chad was invited to attend as an observer at the first meeting (during the project) of the revitalized Joint Authority in February 1998. The Joint Authority acted as the Regional Programme Steering Committee (RPSC).” Id. Currently the efforts are concentrated on “[d]eveloping a regional mathematical model for simulating scenarios for the utilisation of the NSAS, hence developing the regional strategy for the sustainable management of the aquifer. Id. Another example of cooperative framework is the one on the North Western Sahara Aquifer System shared by Libya, Tunisia and Algeria. INT’L RIVER BASINS OF AFRICA, VULNERABILITY OF WATER RESOURCES TO ENVIRONMENTAL CHANGE IN AFRICA: A RIVER BASIN APPROACH (Nov. 2003), http://www.unep.org/dewa/water/vulnerability/Assets/Report_NA.pdf (last visited Dec. 1, 2004); U.N. FOOD & AGRICULTURE ORG., LEGAL OFFICE: LEGAL ADVISORY SERVICES, WATER NEWS, at http://www.fao.org/Legal/advserv/waternews.htm (last visited Dec. 1, 2004). The increased utilization of the North-Western Sahara Aquifer System (NWSAS) since 1982 led to this system being identified as a high national priority.

143 A good example of cooperation occurs on the Vechte catchment area between the Netherlands and Germany. See NETHERLANDS INST. OF APPLIED GEOSCIENCE, REGIS PROJECTS – TRANSBOUNDARY APPLICATION VECHTE, at http://www.envidat.de/REGIS_demo/Home.html (last visited Dec. 1, 2004). On the initiative of the German and Dutch water management authorities the Regional Geohydrological Information System (REGIS) is being applied to the River Vechte cross-border basin. Id. In Europe, the system REGIS-Vechte has been developed in the framework of the Digital Waterway Vechte project with participation by water managers from both Germany and the Netherlands. Id.

144 In the context of the Middle East Peace process a Group on Water Resources was established. ISRAEL MINISTRY OF FOREIGN AFFAIRS, DECLARATION ON PRINCIPLES FOR COOPERATION ON WATER , Feb. 13, 1996, http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/Declaration%20on%20Principles%20for%20Cooperation%20on%20Water (last visited Dec. 1, 2004). This group had four broad agenda items to address some of the critical water issues, which include the enhancement of water data availability, water management practices, including conservation, enhancement of water supply and concepts of regional water management and cooperation. See id. As an outcome of these efforts, “facilitated by the Government of Norway and the Office of Gavelholder,” the core parties “have identified common denominators in their water resources management systems and proclaimed [a] ‘Declaration on Principles for Cooperation’.” Id. These common denominators water include: (i) water legislations, which “apply to all types of water resources including wastewater and desalinated water;” (ii) ownership and administration of water resources, which “are publicly owned and/or centrally controlled. They are used for the benefit of their respective societies.” Id. “[T]he Core Parties in the Middle East Peace Process are considered to be Jordan, [S]yria, Israel, Lebanon and the PLO for the benefit of the Palestinian Authority...” Id. The signatories of the Declaration were Jordan, Syria, Lebanon, Israel and the PLO. Id. The Core Parties confirmed that “this Declaration ... will not affect or alter in any form or manner ... the bilateral or other agreements or undertakings among them, nor does it prohibit or constrain any bilateral arrangements, understandings or agreements aimed at enhancing cooperation in water-related matters. Id.

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Map 1: Transboundary Groundwater Aquifers Shared between Israel and Palestine

transboundary water resources are highly disputed, such as in Israel, Jordan and Palestine, informal regional cooperation is more viable and preferable because the current prospects for concluding obligatory commitments related to the shared transboundary groundwaters are limited. To that end, the next sections draws lessons from the research undertaken so far and proposes the most viable approach for solving the Palestinian-Israeli conflict over transboundary groundwater resources.

5 THE MOUNTAIN AQUIFER145 CASE STUDY

5.1 Description The Mountain Aquifer system, shared between Israel and Palestine, consists of three sub-aquifers: the Northeastern Mountain Aquifer Basin (“NEMAB”)146, the Western Mountain Aquifer Basin (“WMAB”)147 and the Eastern Mountain Aquifer Basin (“EMAB”).148 The former two aquifers form part of an international hydrologic system that is shared with Israel.149 Recharge originating in the West Bank highlands feeds the EMAB, which lies almost entirely within the West Bank.150 According to the Barberis classification of transboundary aquifers,151 the EMAB is part of an international hydrological system, namely the Jordan River Basin, because it is effluent to the Jordan River Basin in that it lies in the upstream of the rivers and feeds into the river. The treatment of the EMAB is beyond the scope of this study. By and large, any future consideration of the whole Jordan River Basin must take into account the relationship between the EMAB utilization and development, and that of the Jordan River Basin.152

5.2 Hydro-Political Background Since occupying the West Bank, Jerusalem, and the Gaza Strip as a result of the Six-Day War of 1967, Israel has constantly refused to relinquish control of any of the occupied territory.153

145 The Mountain Aquifer is considered a “connected aquifer,” shared by Israel and Palestine. See Barberis, supra note 14, at 168. 146 The NEMAB covers the areas of Nablus and Jenin in the West Bank and the waters flows northwards to their major outlets in Bet Sha’an

Springs in Northern Israel. WALID SABBAH & JAD ISAAC, APPLIED RESEARCH INST.-JERUSALEM, TOWARDS A PALESTINIAN WATER POLICY (1995), http://www.arij.org/pub/Towards%20a%20Palestinian%20Water%20Policy.pdf (last visited Dec. 1, 2004). The feeding and storage area of 700 km2 lies almost completely in the West Bank (650 km2). See ALLOCATIONS OF WATER AND RESPONSIBILITIES IN AN ISRAELI-PALESTINIAN WATER ACCORD, GEOGRAPHY OF WATER RESOURCES [hereinafter GEOGRAPHY OF WATER RESOURCES], at http://www.wws.princeton.edu/~wws401c/geography.html (last visited Dec. 1, 2004). The NEMAB starts near Nablus (Schem) and flows towards the Gilboa Mountains and Jezreal and Bet Shean Valleys to the northeast. SABBAH & ISAAC, supra. The Interim Agreement between the PLO and Israel estimated that the recharge of the NEMAB was said to yield 145 mcm/yr. GEOGRAPHY OF WATER RESOURCES, supra. See also map 1, infra.

147 The WMAB, referred to as the Yarkon Tanninim in Israel, is located in the Western part of the West Bank. SABBAH & ISAAC, supra note 146. The recharge area is 1800 km2 of which 1400 km2 lies in the West Bank. Most of the storage area of 2500 km2 lies in Israel. Id. Two major natural outlets are Rash El Ein (in Israel Rosh Ha’ayn) and Tamaseeh Springs. WMAB is estimated to have a recharge of 362 mcm/yr. GEOGRAPHY OF WATER RESOURCES, supra note 146.

148 The EMAB is located and recharged entirely in the West Bank, with the feeding and storage area spread over 2200 km2. See SABBAH & ISAAC, supra note 146. The Interim Agreement between Israel and the Palestinian Authority estimated that recharge of the is EMAB 172 mcm/yr. GEOGRAPHY OF WATER RESOURCES, supra note 146.

149 According to the classification of transboundary aquifers made by Barberis, this statement is true because the two aquifers (NEMAB and WMAB) are each divided by an international border. Barberis, supra note 14, at 168.

150 Hillel Shuval, Towards Resolving Conflicts Over Water Between Israel and Its Neighbours: The Israeli-Palestinian Shared Use of the Mountain Aquifer as a Case Study, in WATER, PEACE AND THE MIDDLE EAST: NEGOTIATING RESOURCES IN THE JORDAN BASIN 137, 141 (J.A. Allan ed., 1996).

151 Barberis, supra note 14, at 168. 152 Many efforts to resolve the conflict over the waters of the Jordan River Basin the latest of which was the Johnston Plan, an allocation scheme

proposed in 1953 by United States special envoy to the Middle East, Ambassador Eric Johnston. AARON WOLF, HYDROPOLITICS ALONG THE JORDAN RIVER: SCARCE WATER AND ITS IMPACT ON THE ARAB-ISRAELI CONFLICT ch. 2 (1995), http://www.unu.edu/unupress/unupbooks/80859e/80859E00.htm#Contents (last visited Dec. 1, 2004). The plan was the product of negotiations with representatives of Israel, Lebanon, Syria and Jordan that led in 1955 to a unified plan for all the riparians. Id. The plan was never adopted or ratified partly because the Arab states (especially Jordan) did not need a comprehensive water development program that directly involved Israel to achieve their immediate development goals, and because the Arabs did not agree to the criteria that were used for dividing the shares among the parties. Id.

153 Mustafa Mar’i, Permanent Status Negotiations in the Palestinian - Israeli Context: A Case for International Intervention (1995/6) (unpublished LLM thesis, Queen’s University-Belfast) (on file with University of Denver Water Law Review), http://firms.findlaw.com/MariLaw/memo9.htm. (last visited Dec. 1, 2004).

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Hostilities and conflicts arising over the utilization and development of the Mountain Aquifer shared between Israel and Palestine make this resource one of the most contentious in the Middle East region and explain why it is the subject of this case study. From 1967154 to 1995,155 Israeli legislation and military orders have governed the Palestinian use of transboundary groundwater.156 Since 1967, Israel has denied the Palestinians access to the only major international surface watercourse, the Jordan River. Accordingly, groundwater in Palestine, most of which is transboundary with Israel, constitutes the major source of supply for all uses. For many years, this practice has violated the rights of people to equitable and fair utilization of the shared water resources. Such a violation is contrary to the spirit and principles of customary international law and is one of the major obstacles to cooperation and the achievement of peace between Palestinians and Israelis. After many long years of conflict, the Palestinians and Israelis started formal negotiations in 1992. The aim of the Israeli-Palestinian negotiations within the current Middle East peace process was, among other things, to establish a Palestinian interim self-autonomy not to exceed three years, and leading to a permanent settlement to be based on the United Nations Security Council Resolutions 242 and 338.157 The unequal balance of power between the disputants characterized the negotiations. A major barrier was that Israel, with superior power in every respect, did not recognize the Palestinians’ right to an independent existence, nor did it acknowledge Palestinian national aspirations. The peace process established water arrangements that were politically sensitive, which is one explanation for their complete failure to address the needs of the population under the stressed political situation. Other reasons for this failure included the asymmetric technical, political, and financial levels of the two parties. Above all, the heart of the problem was the fact that the negotiations did not address the issue of equal legal entitlements between the parties. Israel continues to exercise full control over all the water resources, including those transboundary groundwaters shared with the Palestinians. The interim period only offered temporary solutions for the water crises in Palestine. To date, the parties have only made minimal progress in fulfilling the promised commitments.158 This presents the challenge of how these two parties could negotiate an agreement irrespective of their unequal bargaining power by trusting that ethical considerations and good faith can play a role. Most recently, Israelis and Palestinians informally signed the Geneva Accord, which called for the establishment of the Palestinian State and an end to the era of hostility and conflict.159 The Accord, which was launched in Switzerland on December 1, 2003, was considered a Framework Agreement that the parties would negotiate and further elaborate upon in order to implement the “road map.” The Geneva Accord did not include details on the principles governing the utilization and development of transboundary groundwaters.160 This deficiency was quite serious because it left open

154 Israel took control of “the recharge areas for [the Mountain Aquifer] that flow[s] west and northwest into Israel (at about 320 MCM/yr and 140

MCM/yr, respectively) and east to the Jordan Valley (about 125 MCM/yr). The entire renewable recharge of these first two aquifers is already being exploited by Israel and the recharge of the third is close to being depleted as well.” WOLF, supra note 152 (citations omitted).

155 In September 1995, Israel signed an agreement with the Palestinian Liberation Organization (“P.L.O.”) regarding the interim arrangement on the West Bank and Gaza Strip allocating 70-80 MCM of additional water for the Palestinians. Israel-P.L.O. Interim Agreement, supra note 138, at 625, art. 40(6).

156 STEFAN DECONINCK, COMMENT ON THE OUTCOME OF THE IPCRI WORKING GROUP FORUM OF PALESTINIAN AND ISRAELI PARLIAMENTARIANS (Aug. 27,1998), http://waternet.rug.ac.be/shortage/commentIPCRI1.htm (last updated Oct. 1, 2004). Prior 1967, Jordan issued rules and regulations governing the use, development and other water related matters. These laws remained in effect even after the 5th June 1967, when an Israeli proclamation stated that water use and development could be subject to changes introduced by the Military Commander. After 1967, Israel issued successive Military Orders to amend parts of these laws. Id. Military Orders relevant to this discussion include: Military Order 92 issued August 15, 1967 (transferring authority of West Bank water resources to the military commander); Military Order 158 issued Nov. 19, 1967 (requiring a license issued by a military commander appointed functionary for the construction of new water infrastructure); Military Order 291 issued Dec. 19, 1968 (confiscating water resources, and making them public property under the Israeli Water Law of 1959 for use in Israel’s development). Id. See also WOLF, supra note 152, at ch. 2; WORLD FOUND. FOR ENV’T AND DEV. (WFED), WATER INSTITUTIONS AND WATER LAWS IN PALESTINE (GAZA STRIP AND THE WEST BANK) (1995) (on file with author).

157 Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, Isr.-P.L.O., pmbl., art. I, 32 I.L.M. 1525, 1527 (entered into force Oct. 13, 1993) [hereinafter Israel-P.L.O. Declaration of Principles]. The United Nations Security Council Resolution 242 is a binding Security Council resolution, which contains two main components:“1. Affirms that the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles: (i) Withdrawal of Israel armed forces from territories occupied in the recent conflict; (ii) Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force; 2. Affirms further the necessity: (a) For guaranteeing freedom of navigation through international waterways in the area; (b) For achieving a just settlement of the refugee problem; (c) For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones.” U.N. SCOR, 1382d mtg. at 1, U.N. Doc. S/RES/242 (1967), available at http://ods-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/240/94/IMG/NR024094.pdf?OpenElement (last visited Dec. 1, 2004). Resolution 338 followed the Yom Kippur war of 1973, and called on both sides to begin implementation of Resolution 242. U.N. SCOR, 1747th mtg. at 1, U.N. Doc. S/RES/337, available at http://ods-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/288/65/IMG/NR028865.pdf?OpenElement (last visited Dec. 1, 2004).

158 See generally Israel-P.L.O. Declaration of Principles, supra note 157 (describing obligations of Israel and P.L.O. to end conflict within a five year period ); Agreement on the Gaza Strip and the Jericho Area, May 4, 1994, Isr.-P.L.O. 33 I.L.M. 622, 626 (1994) (describing the obligations of Israel and the P.L.O. and recognizing that the provisions of the Declaration of Principles calling for Israeli troop withdrawal had not yet been met).

159 The Geneva Peace Accord, Oct. 2003, Isr.-P.L.O., pmbl. , art. 2 [hereinafter 2003 Geneva Accord], http://www.al-bab.com/arab/docs/pal/geneva03.htm (last visited Dec. 2003). This is an unofficial peace treaty, which was drafted by a group of Israelis and Palestinians and issued in October 2003. Those involved included former Israeli Justice Minister Yossi Beilin and former Palestinian Information Minister Yasser Abed Rabbo. Id. The Swiss government provided financial backing for the project, also had support from former U.S. president Jimmy Carter. Id.

160 Id. art. 12. Article 12 of the 2003 Geneva Accord has yet to be completed. Id. The text makes several references to annexes, but, in the opinion of this researcher, these issues should have been addressed promptly and clearly in the document.

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all Israeli claims to the region's water resources, natural wealth, and airspace. The text made several references to annexes, but these issues have, in effect, been deferred, and may become the “final status” issues of the Geneva understanding. Nevertheless, the Accord recognized the sovereignty of the proposed Palestinian State over territorial in accordance with the United Nations Charter and international law.161

6 THE WAY FORWARD: WHAT LESSONS LEARNT FROM INTERNATIONAL LAW?

6.1 Introduction In light of the historical background and current political situation, there are valid reasons to suggest that, in the short-term at least, attaining a binding arrangement is impossible. The issues, concerns and challenges listed above require an innovative approach that incorporates lessons from international law and relevant state practice to address systematically these problems in a stepwise manner.162 Due to the highly stressed political environment in this region, this approach is advisable for many reasons, but especially because such an approach can potentially aid the decision-making process by clarifying the various steps states should take before committing themselves to follow international law. The option of a binding treaty is only realistic when all parties collectively agree to commit themselves entirely to the rigors of a formal treaty regime.163 Under such circumstances, international cooperation efforts are more efficient and allow for greater options. If Palestinians and Israelis start with such an informal arrangement and demonstrate tangible benefits and progress, they will hopefully find themselves in a position to generate the requisite national willingness to enter into arrangements that are more formal. This approach, which relies on meeting the underlying legal concept of equity at all times and circumstances, is by no means a repetition of earlier studies and research on this topic.164 It is, however, undeniable that earlier studies had an influence. The following sections consolidate an approach that is believed to adequately respond to the challenges raised with due attention to lessons learnt from international law, including but not restricted to the 1997 United Nations Watercourses Convention, the Bellagio Draft Treaty, and relevant state practice.

6.2 Introducing the Progressive Approach This research reveals that, without cooperation, each entity's pursuit for more water supplies or less demand will take place unilaterally with the probability of duplicate efforts and foregone opportunities. In the initial stages at least, agreements other than formal treaties are preferable because they are sufficient to allow the desired work to proceed and bear fruit. The informal process thus avoids the delays and difficulties a formal treaty, due to its more cautious drafting and required approval, usually encounters. This is vitally important, not least of all because Israel does not feel it is in a position to accept the long-term commitments of a treaty at this time, and is therefore not ready to promptly ratify a treaty. The proposal for approaching the water conflict within the Palestinian-Israeli context is therefore, to progressively establish a solid basis for long-term sustainable cooperative arrangement. The progressive approach starts with a non-binding flexible arrangement that can serve the short-term need, and then gradually builds up into a final legal binding arrangement based on principles of international law. In between these two extreme solutions lies an intermediate proposal, a combination of coordination and collaboration, which is an output of the first arrangement and an input to the final one. The following analysis provides guidance on the structure of this approach, including preconditions, measures and actions, shortcomings, impacts and funding requirements. The core difference between this research and earlier studies, especially in this region, is the fact that the ultimate objective of the approach proposed here is to reach a final comprehensive, equitable and sustainable legal arrangement that governs Palestinian-Israeli relations over their shared transboundary groundwater.

161 Id. art. 4 (2) (providing: “2. Sovereignty and Inviolability (a) The Parties recognize and respect each other's sovereignty, territorial integrity, and

political independence, as well as the inviolability of each others territory, including territorial waters, and airspace. They shall respect this inviolability in accordance with this Agreement, the UN Charter, and other rules of international law.”).

162 The efforts that were facilitated by the Water Working Group on Water, followed a project-based approach, which ignored the issues, concerns and challenges. See ISRAEL MINISTRY OF FOREIGN AFFAIRS, supra note 159. These projects are semi frozen now due to the unstable political situation.

163 The analysis was based on a treaty survey by this researcher of approximately 400 treaties concerning international watercourses. Most of these treaties include a mutual recognition by States to each other’s sovereign rights to the use of a portion of the shared transboundary water. The absence of such recognition, as in the case of Israel, continues to hinder the development of any equitable arrangement on the Mountain Aquifer.

164 The only relevant study that can be cited here is one done by an academic Palestinian team. The study, which presented a stepwise open ended approach for the identification of joint management structures for shared aquifers, falls short in terms of its application of International Law. In fact, International Law is completely absent, as evidenced by the fact that at the outset of the research, the “equity criterion” the researchers referred to was dropped from their list of criteria for the analysis. This might have been justified in this particular case, given the political sensitivities under which the study had to be undertaken. To date, the study has not been brought to the implementation level due to many political reasons. M. HADDAD & E. FEITLESON, MANAGEMENT OF SHARED GROUNDWATER RESOURCES: THE ISRAELI-PALESTINIAN CASE WITH AN INTERNATIONAL PERSPECTIVE (2000) (on file with author).

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6.3 Description and Preconditions As a precondition for successful cooperation over the Mountain Aquifer water resources, it is recommended that the parties undertake a more in depth revision of their negotiation styles in an attempt to give momentum to the currently quasi-frozen negotiation process. There is a need for mutual acknowledgement of common objectives in relation to the shared water resources. To this end, establishing appropriate mechanisms to optimize utilization of the shared resource for present and future generations is essential. Additionally, it is important to create an adequate dialogue and constructive communication to bring the parties back to the table of negotiations. A significant precondition for the successful implementation of the progressive approach is the mutual and genuine appreciation of the necessity of cooperation with respect to shared water resources.165 This necessitates both parties’ confirmation through an exchange of notes of competent authorities on their current position on cooperation. This proposal requires the parties to reconsider their positions on their future relationship relating to their shared groundwater resources. At the outset of cooperation, the parties should be cautious of the decisions they make, including the critical decision regarding the degree and intensity of their cooperation, which depends on many political, social and economic factors.166 The progressive approach is based on some important hypotheses: (i) there is very little schematic knowledge about transboundary groundwater especially on the side of the Palestinians, (ii) both parties need guidance on the variety of existing options for international cooperation, (iii) the resolution of the conflict is envisaged to bear mutual benefit for the people and the shared resources, (iv) the ultimate common objective must envisage a final binding legal arrangement on the basis of international law related to transboundary groundwater. The design of a legal regime and an institutional structure responsive to the particular basin requires a deep understanding of this particular field. This approach is expected to set the stage for thoughtful elaboration at the technical level, whereby scientists, economists and lawyers from both sides can establish an operational network of technical coordination and develop rules on procedures essential for protecting and harnessing the transboundary groundwater resources. This strategy requires persons with specialized training and experience to contribute substantially. This article suggests that if the Palestinians and Israelis begin with an informal arrangement that demonstrates tangible benefits and progress, they could generate the required national willingness to enter into more formal arrangements. This case study demonstrates that these problems derive mainly from political considerations, amplified by technical, terminology and conceptual problems related to communicating information; and uncertainties associated with technical analyses, impact assessments and grave management practices.

6.3.1 Identify the Problem Among the many actions the parties need to take, they must identify the nature of the problem. This is perhaps the most difficult and most important step in conflict avoidance, particularly given the intense hostility between the parties involved. Once they decide to cooperate, the mobilisation of available water resource management experts and the involvement of domestic governmental structures capable of effective international cooperation and collaboration become necessary.167 The need for third party intervention then arises, particularly to address the issue of power inequity. The third party is recommended to consist of one member nominated by each party, plus one member that does not share the nationality of any of the parties whom the nominated members who shall serve as chairpersons will choose.168 It is recommended that the team’s expertise is diverse and includes a lawyer, a hydrogeologist and an economist. The third party team could help the process by identifying aspects of the problem, the actors, and they could also act as an advocate not just for compromise, but also for ensuring that the accuracy and reliability of facts and information. This stage must emphasize the universal need for reliable data and information, because without it the rational management of aquifers at any level is impossible. The next practical step is for the parties to identify the transboundary groundwater resources at issue, and agree on the geographic hydrogeologic and hydrographic concepts169 they are willing to employ and the terminologies they are ready to adopt. 170 The task of identifying what groundwater aquifers are shared between them should be based upon scientific evidence and hydrogeological investigations.171 By and large, it is agreed that the Northeastern and the Western Aquifer Basins are transboundary. As for the Eastern Aquifer Basin, there is a real need to jointly assess its transboundary status. A very important goal in that regard is to mutually understand and respect the differences between the parties and try to reconcile them. These differences are derived from the different stages of development,

165 Id. 166 See U.N. DEP’T OF ECON. & SOC. AFFAIRS, supra note 20, at 18. 167 Id. 168 This step resembles Paragraph (4) of Article 33 of the 1997 UN Convention on “Dispute Settlement.” 1997 U.N. Watercourses Convention,

supra note 54, art. 33(4). 169 The choice of the conceptual hydrogeological management unit is a significant decision that the parties must make. The “Drainage Basin”

concept is the best suited for the optimal management development and protection of transboundary groundwater resources. 170 This step is basically identifying the “Scope and Use of Terms.” 171 These investigations are mainly available on the Israeli side, because during occupation the Palestinians were denied access to important data

related to the shared groundwater resources.

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financial and institutional capabilities, and the need for more water, use priorities and environmental concerns.172 This scoping exercise is not an easy task; in fact, it might constitute the most crucial decision-making process. Successfully accomplishing this complicated task makes the remaining tasks simpler, and lays the foundation for agreeing on subsequent requirements and identifying commitments. The assessment of the strengths and weaknesses through technical personnel and equipment is vitally important in this approach. Because the Israelis have developed faster than the Palestinians in the field of water resources management and regulation, arrangements must be made to exchange personnel and institute a program to create working sites and educational institutions within the Palestine. Completing such a step will minimize and balance the asymmetries that exist between the parties.

6.3.2 Agree on Interests and Not Positions Having identified and agreed on the problem and the contested groundwater resources, the parties should then agree on interests and not positions.173 A vital step is to encourage the two parties to decide on what their interests are and to identify options for mutual benefits. Each party should negotiate only as long as its interests can be best served at the negotiation table. At this stage, the parties are advised to conduct a joint assessment of how they could employ international law to achieve an integrative, equitable, and mutually beneficial arrangement for the parties in conflict. Once they achieve this goal, the parties will become more open to cooperate and collaborate in an environment of good faith. It is advisable at this stage for the parties to evaluate assessments on the value of water using legal, economic and social guidelines.174 At this point, the need will arise for specific activities to pave the way for further cooperation. Such activities are discussed below.

6.3.3 Create Options for Mutual Benefits By this stage, the parties have hopefully developed a common understanding on the availability of water resources and their respective vital human needs.175 It appears that “vital human needs” is a first call on water. Similarly, there is a growing trend to recognize and protect the vital needs of the river, or “vital environmental needs,” in-stream flow requirements and conservation measures. There are three key global instruments related to human rights: the 1948 Universal Declaration of Human Rights,176 the 1966 Covenant on Civil and Political Rights,177 and the 1966 International Covenant on Economic, Social and Cultural Rights.178 The Committee on Economic, Social and Cultural Rights adopted the General Comment on the Right to Water in order to provide greater interpretive clarity as to the intent and meaning of the Covenant.179 The 2002 General Comment used the term “personal and domestic uses” rather than “vital human needs.” This term is broader in definition and content, and emphasises that the right to water takes precedent over all other water needs.180 The General Comment confirms that, although the adequacy of water required for the right to water may vary according to different conditions, some factors apply in all circumstances. The “vital human need” factor includes availability, quality, physical and economic accessibility, non-discrimination and information accessibility.181 This factor also appears in Article 10 of the 1997 United Nations Watercourses

172 The long years of occupation have negatively impacted all these areas of development for the Palestinians. These differences must be alleviated

or modified through the proposed cooperation. 173 The emphasis on positions has, for many years, widened the gap between the Palestinians and the Israelis concerning their shared transboundary

groundwaters. The author recommends that the parties give up this approach, which failed to achieve a feasible solution, and follow the “common interest” approach which is more realistic.

174 This is in line with the Legal Assessment Model (LAM) developed by the Knowledge and Research Project conducted by the International Water Law Research Institute at Dundee University. INT’L WATER LAW RESEARCH INST., SHARING TRANSBOUNDARY WATERS: AN INTEGRATED ASSESSMENT OF EQUITABLE ENTITLEMENT [hereinafter Dundee KAR Project], http://www.dundee.ac.uk/law/iwlri/Documents/KaR/KaR%20Brochure.pdf (last visited Dec. 1, 2004). This research also seeks to operationalise “equitable and reasonable utilization” through a practice-oriented and interdisciplinary approach in the context of shared unconfined groundwater aquifers between Israel and Palestine. Id. The other two case studies are one that deals with upstream case (China) while the other handles the downstream (Mozambique). Id.

175 See MINISTERIAL DECLARATION OF THE HAGUE ON WATER SECURITY IN THE 21ST CENTURY, supra note 128, para. 1 (describing a meeting of government representatives that committed themselves to meet the “vital human need” for water) The commentary to the 1997 U.N. Watercourses Convention defines these needs as “providing sufficient water to sustain human life, including both drinking water and water required for the production of food in order to prevent starvation.” 1997 U.N. Watercourses Convention, supra note 54, at 719, art. 10 cmt (referring to statement of understanding pertaining to certain articles of the Convention). This wording does not adequately define the population that is considered to be dependent on the watercourse, which caused difficulties with its application in the case studies. The meeting of vital human needs as such as drinking water or food can be achieved other than from the local watercourse. In contrast ecological services do need to be delivered at the place of the watercourse.

176 Universal Declaration of Human Rights, Dec. 6, 1948, U.N.Doc A/810. 177 Int’l Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 3, 6 I.L.M. 368 (entered into force in Mar. 23, 1976). 178 Int’l Covenant on Econ., Soc. and Cultural Rights, Dec. 19, 1966, 993 U.N.T.S 3, 6 I.L.M. 360 (1966) (entered into force Jan. 3, 1976). 179 Substantive Issues Arising in the Implementation of the International Covenant of Economic, Social and Cultural Rights, General Comment 15:

The Right To Water, U.N. ESCOR, 29th Sess., Agenda Item 3, U.N. Doc. E/C.12/2002/11 (2002) [hereinafter GC15], http://www.unhchr.ch/html/menu2/6/gc15.doc (last visited Oct. 16, 2004).

180 Id. art. 12 n.13. The term “personal and domestic uses” includes: (i) drinking, ( meaning “water for consumption through beverages and foodstuffs”); (ii) personal sanitation, (meaning “disposal of human excreta”); (iii) food preparation, (including “food hygiene and preparation of food stuffs, whether water is incorporated into, or comes into contact with, food”); and (iv) personal and household hygiene, (meaning “personal cleanliness and hygiene of the household environment.”). Id.

181 Id. art. 12.

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Convention, which provided parties should resolve any conflict of use in accordance with the rule of equitable and reasonable use in Articles 5 through 7, giving “special regard ... to the requirements of vital human needs.”182 The commentary to these articles defined these needs as “providing sufficient water to sustain human life, including both drinking water and water required for the production of food in order to prevent starvation.”183 This wording did not adequately define the population that is considered to be dependent on the watercourse, which caused difficulties with its application in the case studies. The local watercourse is not the only means to achieve satisfaction of vital human needs for drinking water or food. In contrast, ecological services do need to be delivered at the place of the watercourse. In the area of the case study, neither party has formally defined or accepted a minimum water requirement (“MWR”). Peter Gleick stated that present urban water uses suggest an appropriate level might be between 75 and 150 cubic meters per person per year (m3/person/year). Hillel Shuval, a water quality scientist of international stature based at the Hebrew University in Jerusalem, provided an estimate for the minimum legitimate baseline water needs of the Israelis and Palestinians. This amount is required to ensure a reasonable minimum standard of living in a semi-arid area suffering from serious water shortages. He proposed the MWR for domestic, urban, and industrial uses for Israelis and Palestinian alike would be approximately 125 m3/person/year. The second call for states is to examine their economic and social development needs and the extent to which the available resources can meet all their needs without compromising the sustainability and long-term safe yield of the resources. The results of this study might recommend the reconsideration of water utilizations among the parties and therefore a decision in response will be crucial. If the results reveal that even under an equitable and reasonable utilization scenario, the existing resources are not adequate to compensate for the regional shortage, the parties are required to create options for mutual benefits and commonly plan for the valuable regional water resources to ensure their sustainable development. 184 They could also cooperate in the areas of developing unconventional water resources, such as desalinated water or regional development projects.185 Linkages could have been made to provide the Israelis with good will benefits while providing the Palestinians with technical assistance that could have raised the level of knowledge of the water resources in the Middle East in the Palestinian Authority to the level of the other parties. There was no real reason to build another water database in Israel, which no one in Israel uses, while there was a tremendous need for the Palestinian Water Authority to build its own water database.

6.3.4 Joint Assessment of Legal Entitlement from the Mountain Aquifer The study of the legal entitlements by each side to transboundary groundwater is of vital importance to the success of the proposed progressive approach. The agreement among the parties to conduct such a study would indicate good intentions and contribute to building trust between them. It is recommended to follow a systematic approach in identifying the factors that affect and are affected by the existing transboundary groundwater recourses and their distribution. The recent research efforts conducted by the Knowledge and Research Project (“KAR Project”)186 in this field are very relevant. One of the major outputs of the KAR Project was the development of a methodology to help states assess their legal entitlements and obligations with respect to their shared water resources. The methodology is supported by certain tools created for the purpose including: the “Glossary of Terms,”187 the “Relevant Factors Matrix,”188 the “Legal Audit Scheme,”189 geographic,190 hydrographic,191 hydrologic or hydrogeologic,192 climatic,193

182 1997 U.N. Watercourses Convention, supra note 59, at 705-07, art. 5-7, 10. 183 Id. at 719, art. 10, cmt. (referring to statements of understanding pertaining to certain articles of the Convention).

184 Many regional studies have been implemented under the multilateral talks, without controversy, due to the fact that the first step of assessing the legal entitlement in the fashion mentioned here was never completed. Additionally, these projects were conducted under the umbrella of the Multilateral Working Group on Water, where donors have offered to pledge money for projects that are expected to contribute to the peace process. ISRAEL MINISTRY OF FOREIGN AFFAIRS, supra note 159. The Zambezi Action Plan, provides a range of significant tasks and projects that could be implemented as part of the protection of the transboundary groundwater resources. See Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System, May 28, 1987, ocid.nacse.org/qml/research/tfdd/toTFDDdocs/177ENG.htm (last visited Oct. 17, 2004).

185 These projects include the Mediterranean Sea Dead Sea and the Red Sea Dead Sea Conveyance projects, the later being lately identified as a Jordanians Israeli initiative with the possible involvement of the Palestinians. See SHARI BERKE, AMERICAN UNIV., TRADE & ENVIRONMENT DATABASE, CASE STUDIES NO. 429: DEAD SEA CANAL, at § 5-6, http://www.american.edu/ted/deadsea.htm (last visited Oct. 17, 2004).

186 See Dundee KAR Project, supra note 185, at Final Project Report (May 5, 2004). 187 Id. at 57 (defining the Glossary of Terms as including all terms that are expected to have dual interpretations among hydrologists, economists,

lawyers and other people working in the field of water). 188 Id. at 84 (stating that the “Matrix of Factors” is inspired by the list of factors that are set forth in Article 6 of the 1997 U.N. Watercourses

Convention and Article V (a)-(k) of the 1966 Helsinki Rules. The Matrix of Factors combines both, and includes the research team’s finding on how to best present these factors in an acceptable manner).

189 Id. at 64. The purpose of the Legal Audit Scheme (LAS) is to provide a snapshot of the legal context within which the State operates. It provides an overview of the existing legal entitlements and obligations and is a tool to be used by a State in order to identify its rights and obligations as well as respective rights and obligations of other States sharing the same transboundary watercourse. Id. The State can thus ascertain in a systematic manner the relevant provisions of international agreements in force for this State and other legal instruments, which may affect its existing or planned uses of the waters of an international watercourse. Additionally the LAS is designed to help ensure compliance by a State, with its existing commitments. It will also assist a State to monitor and verify performance by other States parties by assessing how effectively they implement and enforce their respective treaty obligations. Id. Additionally, the LAS should identify whether a State’s national law is in conflict with its international legal obligations.

190 Setting the geographic context includes a statement on the location of the Watercourse State, whether it lies is downstream or upstream with respect to the specific groundwater aquifer, and to what extent this factor is important and relevant to the whole assessment study. Id. at 89.

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population dependence,194 economic and social factors195 that must be jointly collected, compiled and analyzed in a consistent manner.196 The impact of the existing and planned uses of one state on the other,197 the efficiency and availability of alternatives including the potential for conjunctive use of the available waters are also factors that must as well be jointly studied and analyzed. For the evaluation of what is equitable and reasonable, the parties are recommended to adopt a unified method of evaluation198 that is commonly developed and accepted. The success of such evaluation depends mainly on the availability of accurate and reliable information to be shared by the parties.199 The study shall address the questions of how to implement the customary international law rule on “equitable and reasonable utilization” in the case of transboundary groundwater, and how to best inform and influence decision-making. This will be done by examining the type of data needed to incorporate legal, technical and social science existing requirements and needs of the future. What is the format for data collection and presentation to allow exchange and easy access? How dynamic is the process? What are the triggers for the reassessment? Is there a generic model that could be implemented in cases of transboundary groundwater aquifers? The final conclusions of this study will offer guidance to the parties on how to determine their legal entitlement from these shared resources. The study shall assess the quality and adequacy of the available data to identify gaps and needs for data improvement. The long-term vision must be a unified comprehensive database that incorporates all water data

191 Id. at 90. The hydrographic factor mainly concerns the extent of the international watercourse in the territory of each watercourse State. It is

most usefully expressed as the proportion, in relation to the area of the whole basin that occurs in the State of interest. Id. It can be measured from “maps at scales appropriate to the size of the basin.” Id. In many cases this is a straightforward procedure, but difficulties can sometimes occur. The extent of the watercourse is interpreted to mean the extent of the aquifer, whether confined or not, in each territory. Id. As the aquifer cannot be seen at the surface, its extent is not as obvious as is the drainage basin. Its assessment will depend on the availability of geological and hydrogeological maps or reports and studies of the hydrogeology of the area. “In some cases ... accurate and large-scale maps ... may not be available, and this will inevitably limit the… accuracy” of the result. Id. “The definition of the extent of the aquifer as used here is also limited by the practicability of its exploitation. For instance, in some areas water bearing strata may be so deep underground that they could not practicably be used to supply water; such areas would not be included as part of the extent of the aquifer.” Id. Also in the case of transboundary groundwater it is wise to consider the overall surface area of the aquifers at issue together with any activities taking place on this area that might influence the quality and quantity of the recharged water (land use, industrial activities, and waste disposal, etc.).

192Id. at 91, 94-95. “Hydrology is taken to include both surface water and groundwater. A number of different aspects need to be examined in order to assess this [factor] properly: A. Mean water availability; B. Variability of the resources; C. Water quality; D. Contribution of water to the [watercourse] by each [watercourse] State; E. Potential climate change impacts” and possible interactions between groundwaters and surface waters. Id. Mean annual availability: “[i]n most cases, mean water availability for groundwater is taken to be the long-term safe yield that may be extracted from the aquifer. The safe yield is the amount of water which can, on average, be extracted indefinitely without depleting the storage of the aquifer. This is equivalent to the average rate of recharge or replenishment of the aquifer from surface water.” Id. at 94. Variability of Resources: the variability of the resources is relevant because the greater the variation over time, the less practicable it is to make effective use of the resource. Both seasonal and inter-annual variability are significant. For surface water, “[s]easonal variability can usually be described by the average amount of variation between the wet season and the dry season. The inter-annual variability is the amount of variation of the annual flows over a long series of data, described, for instance, by the coefficient of variation of annual flows, as well as by the highest and lowest annual flows ever recorded.” Id. As noted above, “river flows should be assessed over a long time series [30 years or more] of monthly flows,” and if this has been done, then there would already be sufficient information to describe the variability. Id. at 95. Groundwater resources “are often treated as invariant with time, and they are in any case usually much less variable than surface water. However, there are cases where the variation is significant, and this should therefore be assessed in the same way as with surface water.” Id. Assessment of inter-annual variability is an important factor in allocating water as it may be that States require water for different purposes at different times. Water quality: “[t]he quality of the water is important since this can determine whether or not water that is physically available can actually be used for a particular purpose.” Id.

193 Id. at 98. Assessment of the climatic factor does not necessarily require a detailed study of the climate of the area. “The broad climate type…should be identified, along with the long-term mean monthly rainfall. Potential evaporation rates should also be determined.” Id. “Observed data are available almost everywhere to enable this to be done, although data paucity may still be experienced.” Id. As for the hydrological factor, the “[s]easonal and inter-annual variability of the precipitation should be identified. Where long, reliable records are available, trends in climate patterns should be identified.” Id.

194 Population in the basin includes (i) Present and projected population; (ii) Populations in the study country and in the other States; (iii) “Distribution of population;” (iv) “Growth and migration of population;” and (v) Livestock. Id. at 86.

195 “This factor identifies the demands on or the uses of the [watercourse], and the economic and other benefits that flow from the uses.” Id. at 104. “The first step is to identify the uses themselves, both existing and potential, and then to consider the benefits derived from them. The existing and potential uses are the first two components, but certain types of use – meeting ‘vital human needs,’ social use, and ecological or environmental use – are considered as special ones and are also treated individually. Id.

196See id. at 86-87 (illustrating the combination of all the above mentioned factors in the Relevant Factors Matrix, developed by the KAR project). 197 “Impact is the effect[s], [both] positive and negative, which a use of the waters of the [watercourse] has on other uses or the [watercourse] itself.

Id. at 116. It is important to determine the transboundary impacts, that is, the effects that uses in one State have on the other States in the basin, but consideration should also be given to impacts within national boundaries. Id. The impacts of both existing and potential uses need to be examined, and there should be a clear separation between the two: the impacts of potential uses should be explicitly identified and separated from the impacts of the existing ones. Id. “The evidence of actual harm or beneficial effects should be clear and convincing. It is essential that the projected impacts of potential uses be shown to be likely rather than merely speculative.” Id.

198 The parties should employ the Method of Evaluation that was developed under the KAR Project. Id. at 131. 199 Modern water management requires a large integrated knowledge base, data/information on the natural/ physical characteristics of the resource,

on the social and economic uses needs and demands. The data has to be available in order to be shared and exchanged. A precondition for generating such data is availability of modern reliable monitoring networks and assessment systems. Monitoring needs to be embedded in a strategic ‘holistic’ approach. In addition to monitoring, institutional arrangements regarding data provision and exchange are necessary (e.g. water uses). In the Palestinian case none of the conditions applies. The generation of and access to data has been prohibited for the past years of occupation. The hydrological monitoring network dates back to the 1960’s, which is not in operation at present. As for Israel, in the last few decades it has been developing rapidly in the field of monitoring and assessment. Unfortunately most of the significant research and data relevant to the transboundary groundwater has been classified as confidential. The few reports that are published and exchanged with the Palestinians are those which are not considered a threat to Israel's 'water security'.

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and related information pertinent to the development utilization and protection of the shared groundwater resources.200 An assessment of the Vital Human Needs and the degree of dependence of the population on the transboundary groundwater resources is the first step in the legal entitlement assessment exercise.201 If it is practically difficult to carry out the assessment jointly, the determination of the factors and their relevance to the transboundary groundwaters can be done separately, the results of which can be discussed jointly to reach an agreement on to come out with a reasonable. Logically following this unified method of evaluation is expected to yield results that are not significantly different and, therefore, reaching consensus becomes easier. Although employing the Legal Assessment Model paves the road for more proactive steps, the process for completing the assessment is essential.

6.3.5 Collaboration and Joint Projects This stage brings the efforts, studies and research from the technical cooperation phase into practical implementation. In fact, those efforts will be wasted if no action follows them. Types of collaboration may include technical, economic, financial, administrative and political fields. The difference between this stage and the technical cooperation stage lies mainly in the need at this point to implement projects and commence programmes that might influence existing uses. Water officials from each party have to be alerted to plans and the various options available to meet the need of any stage of development of their shared groundwater system. To achieve the foregoing, it is essential to establish appropriate mechanisms for cooperation and to fulfil crucial requisites. The said efforts include: (i) proactive support and long-term commitment at the political level, (ii) the mobilisation of the available expertise in the various fields relevant to water resources management, and (iii) the enactment of a domestic governmental structure capable of effective international cooperation and collaboration. Each of these projects must provide a specific contribution to this multidisciplinary initiative aiming to improve understanding of scientific, socio-economic, legal, institutional and environmental issues surrounding the management of transboundary aquifers. The resulting projects from the first stage are considered intermediary outputs and must be used as inputs for the next stage. These include conducting transboundary groundwater surveys,202 and the development of monitoring and assessment guidelines.203 The integral basin area approach must be used as the basic concept for structuring the guidelines on monitoring and assessment. Also essential for the transboundary groundwater assessment is the development and evaluation of strategic policies for compatible groundwater management.204 The parties must pursue projects that aim to harmonize national laws and regulations. Lessons could be learnt from best practices in national regulations that respond to the challenges of special issues and concerns about transboundary groundwater. National regulations can be accordingly adapted and modified to provide a harmonized legal framework governing the utilization and development of these resources at the national level, especially in the following areas: (a) where the matter is significant in the sphere of basin wide or system wide water policy and water management, (b) where there is discriminatory impact on non-national users, and (c) where national users are placed at competitive disadvantages with respect to a similar class of users in the other state.205 The removal of legal conflicts and the enactment of the essential regulation in the respective state codes are essential to water use optimization and to the promotion of regional development and cooperation generally.

6.4 Treaty Formulation206 At this level of co-operation the Parties are hopefully in a position to establish common objective criteria in their efforts to conclude a water treaty. The Parties are recommended to recognize and accept their common responsibility in ensuring the reasonable and equitable development and management of groundwaters in the border region for the well being of their peoples.207 In the treaty formulation process, attention must be paid to the fact that international water

200 The Regional Waternet project that was initiated under the multilateral talks can be reactivated and better developed to fulfil this objective.

ISRAEL MINISTRY OF FOREIGN AFFAIRS, supra note 159. 201 See Stephan Libiszewski, Ctr. for Sec. Policy and Conflict Research/ Swiss Peace Found., Water Disputes in the Jordan Basin Region and their

Role in the Resolution of the Arab-Israeli Conflict, ENCOP Occasional Paper No. 13, at ch. 2, 6 (1995), http://www.fsk.ethz.ch/encop/13/en13.htm (last visited May 2003).

202 E. ALMASSY & ZS. BUZAS, supra note 18, at 8. The survey could have the following scope and objectives: (a) to highlight “the location, extension and type of transboundary groundwaters;” (b) assess “monitoring activities, pollution sources and contamination of transboundary groundwaters;” (c) identify the “uses, problems and trends in the state of groundwater according to the observations;” and (d) propose the “institutional- and international aspects in their management in the” Middle East region. Id.

203 U.N./ECE TASK FORCE ON MONITORING & ASSESSMENT, GUIDELINES ON MONITORING AND ASSESSMENT OF TRANSBOUNDARY GROUNDWATERS 9-11 (2000), http://www.unece.org/env/water/publications/documents/guidelinesgroundwater.pdf (last visited Dec. 1, 2004). The first step is to characterize the transboundary groundwater system in terms of flows, recharge discharge areas, interaction between surface and groundwater. Id. at 9. Activities within the recharge areas at one side of the borders which might adversely affect the groundwater quality on the other side of the border must be monitored. Id. at 9-10. The actual and possible future functions and uses of the aquifers must be assessed based on the quantity and quality features of the groundwater system concerned. The next step is assessing the vulnerability of the aquifer which identifies those zones of the aquifer system which are considered vulnerable to threats and therefore require an early warning system to avoid occurrence of pollution. This step will include the identification of types of threats, measures and the monitoring cycle. There will be a need to assess also the current monitoring and assessments practices and identify gaps, and based on that, design the groundwater monitoring systems. Id. at 24.

204 This means, for example, in order to assess trends in groundwater quality, the definition for trends should be comparable on both sides of the borders. Also, the methodologies for estimating annual recharge and safe yields of the shared aquifers must be compatible. See id. at 7.

205 See U.N. DEP’T OF ECON. & SOC. AFFAIRS, supra note 20, at 18. 206 Annex 5-II includes a “Proposed Framework Agreement between the Palestine Liberation Organization and the State of Israel Concerning The

Utilization Development and Protection of Transboundary Groundwaters”. 207 See R. D. Hayton, and A. Utton, Transboundary Groundwaters: The Bellagio Draft Treaty, 29 NRJ (1989), Article II.

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resources development is an undertaking that involves policy decisions and complex technical assignments. The current stage require the knowledgeable and persistent support of decision makers. It is recommended that there be an in-depth reconsideration of the negotiations approach in an attempt to give momentum for the negotiation process. As a precondition, the basis for treaty formulation is the Parties’ common objective concerning the need to attain optimum utilization and conservation of transboundary groundwaters and to protect the underground environment. This type of understanding requires the Parties to develop and maintain reliable data and information concerning transboundary aquifers and their waters in order to use and protect these waters in a rational and informed manner. This next discussion will be based on the recommendations from chapter 3 to employ the UN Convention and the Bellagio Draft Treaty as a framework agreement governing the utilization and development of transboundary groundwater. Naturally, this framework will not be adopted in its entirety but rather adapted and modified so as to suit the local conditions.

6.4.1 The Glossary of Terms and Concepts From the technical perspective, water resources management crosses many disciplines, which undoubtedly play a significant role in the efficient management and development of this valuable resource. Consequently, effective water administration calls for the active involvement of technical, legal, economic and political science experts in the final status negotiations and in the development of policies, strategies and regulation of the valuable resources. The problem of harmonizing terms and concepts in this regard is two fold: one is Palestinian-Palestinian, while the second is Israeli-Palestinian. The first invokes the need for harmonizing the understanding of the various terms and expressions used among the Palestinian experts, in order to ensure that experts from all disciplines are discussing the same topic and mean the same thing. This understanding will eventually lead to a solid platform for the negotiations, and for the enactment of the effective tools for the management of this resource. The second problem is Israeli-Palestinian, which requires the harmonization of terms and concepts between the Palestinians and the Israelis, is more complicated and is expected to be cumbersome to achieve. It would require prodigious efforts and willingness by both sides to reach a common understanding in that regard. A consensus on the meaning of terms such as the right to water, equitable and reasonable utilization, the definition of “international water”, among many others, is crucial to the success of the final negotiations on water. This consensus will ensure compatibility in the understanding of the terms that are currently used by the politicians, the legal and technical people in varying meanings. Annex 5-II includes a proposed glossary of the essential technical and legal terms that might be used as a tool for negotiations and further development.

6.4.2 Define Hydrologic Management Unit It is not always simple to define the geographic area to be covered by the legal arrangement. Although the previous analysis and recommendations from Chapter Three urge States to adopt the ‘Drainage Basin Concept’ in the case of transboundary groundwater, this is not always a realistic solution. State practice has demonstrated resistance on the side of States to adopt such a concept. Accordingly, the Parties are likely to resist the adoption of such a concept and favour the “watercourse system approach” as in the UN Convention which narrows the geographic scope of the resource in legal terms. Nevertheless, the treaty must ensure that land activities and other environment related activities that might adversely affect the quantity and quality of these resources are as well incorporated in this conceptualization. It is also possible that the Parties only agree that a portion of the basin in the border region are to be regulated. This kind of geographical focus involves deliberate decisions to work in one selected locale within the entire aquifer basin system either in an effort to achieve comprehensive development and management in at least the vulnerable sub regions, or in recognition of their inability to deal comprehensively with the entire aquifer basins at this time.208 The treaty however should clearly indicate whether the intention is a comprehensive administration along the entire border or otherwise a narrower and specified control is sought. In the situation of Israel and Palestine there are three aquifer basins to be considered within the proposed treaty the NEMAB, the WMAB and the EMAB. The first two aquifer basins are of the same category; i.e. aquifers that recharge and in one State and extend to another, and can be therefore treated in a similar manner. The EMAB is of a different category as it lies almost entirely in one State but is effluent to another international surface watercourse-the Jordan River. The Parties have to take this characteristic of the EMAB into account and respond accordingly in the provisions relating to its utilization development and protection.

6.4.3 Identify the Substantive Rules Having agreed on terminologies, scope and geographic reach the next step is to formulate the provisions on the substantive rules and principles governing the utilization development and protection of the transboundary aquifer. These have been recommended to be derived from the UN Convention on the Law of Non-Navigational Uses of International Watercourses. The principle of equitable and reasonable utilization is set forth in Articles 5, 6 and 7 of the

208 This decision depends on the results from the monitoring and assessment in defining the vulnerable segments of the aquifer basin system. These

results might indicate that some sub regions in the border areas are highly vulnerable and therefore are in need for joint efforts and regulation. The expert group who drafted the Bellagio Draft Treaty raised this issue in a very careful manner and considered that control at the border is to be asserted only in zones considered critical because withdrawals are exceeding recharge or contamination is threatening groundwater quality. See ibid. In the case of Israel and Palestine the Western Aquifer might be considered in the category of critical especially at the border region where the Israelis have drilled hundreds of deep wells alongside the green line in the Israeli territories.

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Convention. On the other hand Article 7 of the Convention sets forth the obligation not to cause significant harm to other Watercourse States. Where significant harm is caused, the Watercourse State causing this harm must take all appropriate measures to eliminate and mitigate such harm and where appropriate discuss the question of compensation.

6.4.4 Identify the Procedural Mechanisms The rules of procedures within the proposed treaty may be borrowed from the UN Convention and the Bellagio Draft Treaty. Cooperation must be at the heart of these rules. Cooperation must include the exchange of data and information and the establishment of a joint data base relating to the transboundary groundwater aquifers. Notification and consultation should be required on any actual or planned significantly polluting discharge into transboundary groundwaters or recharge areas, or of other activity with the potential for significant leaching into transboundary groundwaters. Procedures for the protection of quality and quantity of transboundary groundwater include the declaration of transboundary groundwater Conservation Areas, Drought Alerts, Drought Emergencies and public health emergencies and the corresponding plans and Depletion Plans. The criteria for the determination of Conservation Areas considers whether: (a) groundwater withdrawals exceed or are to exceed recharge even so as to endanger yield or water quality or are likely to diminish water, the quantity or quality of interrelated surface waters; (b) recharge has been or may become impaired; (c) the use of the included aquifer(s) as an important source of drinking source of water has been or may become impaired water; (d) the aquifer(s) have been or may become contaminated and; (e) recurring or persistent drought conditions which may necessitate management of all or some water supplies in the particular area. For each declared Transboundary Groundwater Conservation Area, a Comprehensive Management Plan must be prepared for the rational development, use, protection and control of the waters in the Transboundary Groundwater Conservation Area. The Comprehensive Management Plan may (a) prescribe measures to prevent, eliminate or mitigate degradation of transboundary groundwater quality, (b) allocate the uses of groundwaters and interrelated surface waters taking into account any other allocation(s) previously made applicable within the Transboundary Groundwater Conservation Area; (c) prescribe measures including pumping limitations, criteria for well placement and number of new wells, retirement of existing wells, imposition of extraction fees, planned depletion regimes or reservations of groundwaters for future use; (d) arrange, where conditions are favourable, programs of transboundary aquifer recharge (e) articulate programs of conjunctive use where appropriate (f) prescribe the integration and coordination of water quality and quantity control programs and (g) include other measures and actions as may be deemed appropriate by the Commission. The planning for drought is another critical issue that has to be addressed in the treaty which will be applicable to the border region for activation in the region, or in parts as agreed by the Parties. The Drought Management Plan must specify the hydrometeorological preconditions for the declaration of a Drought Alert and emergencies and the conservation measures to be observed by all water users within the border region. Additionally, the plan provides for the monitoring of the hydrometeorological conditions generally in the border region and compliance with prescribed conservation or other specific measures under any Drought Alert or Drought Emergency. Alternative resources have to be made available during drought alerts or emergencies. Accordingly the drought plan must designate and reserve certain transboundary aquifers or specific well sites for use in times of drought, schemes for the conjunctive management of groundwater and surface water, impose limitation on the normal allowable withdrawals and at variance with allocations made under a Comprehensive Management Plan for a Transboundary Groundwater Conservation Area or by prior agreements between the Parties maintaining to the extent practicable the established withdrawal ratios between the Parties and an equitable balance of all emergency obligations.

6.4.5 Institutional Mechanisms and Dispute Settlement The foregoing proposed substantive and procedural rules governing the utilization and development of transboundary groundwaters between Israel and Palestine cannot be realistic and achievable unless there is an authorized joint institution responsible for the implementation. The Bellagio Draft Treaty introduces a Joint Commission that has wide authorities for oversight and supervision. To that end the existing Israeli-Palestinian Joint Water Committee that was established under the Interim Agreement between Israel and Palestine can assume the role of such institution. However, the mandate structure and objectives of this institution must be modified and adapted to comply with the responsibilities as given in the Bellagio Draft Treaty. In the context it is recommended however, not to limit the authorities of such institution to oversight and supervision rather expand it to include enforcement.209

209 In defining responsibilities to the proposed institutions, lessons could be learnt from the .Bellagio Draft Treaty. Article III provides a list of the

range of activities and functions such institutions can assume ” 1. The Commission is designated as the Parties agency to carry out the functions and responsibilities provided for by this Agreement. 2. The

Commission shall be authorized a technical staff, which. In collaboration with the technical staffs of the Governments shall assist the Commission in the accomplishment of its functions and responsibilities. 3. The Commission is authorized to declare Transboundary Groundwater Conservation Areas, Drought Alerts, Drought Emergencies and Public Health Emergencies and to promulgate the corresponding plans and Depletion Plans, in accordance with the provisions of this Agreement. 4. The Commission shall have jurisdiction over such additional matters concerning the border region as are from time to time referred to it by the Governments jointly. 5. The Commission shall prepare and propose to the Governments a budget conforming insofar as practicable to the budget cycles and procedures of the Governments, covering the projected expenses and capital costs of the commission’s joint operations plant and staff. The total amount of each budget shall be divided between the Governments in the proportions agreed

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It is recommended as a first step for solving a dispute or accommodating for differences that the JWC expend its best efforts to resolve differences with respect to the facts and circumstances of a situation within the purview of the Agreement. In the event of failure to resolve such differences within a specified period (e.g. 6 months) at the technical level, the dispute should be submitted together with the entire record, to the Governments for its resolution by consultation. If after good faith consultations during another specified period (e.g. 12 months) Governments are unable to reach an accommodation of a difference or differences between them concerning the facts and circumstances of a situation, any Government should be entitled to appoint a commission of inquiry that should charged with a full and impartial study for the purpose of verification of the facts of the situation. This commission of inquiry should render a report to the Governments within the terms of its instructions and on the basis of independent and detailed examination of the data and information made available to it by the Governments and the JWC, and should be able to request such additional data and information as the commission of inquiry deems significant for its deliberations and findings. On the basis of the report of a commission of inquiry, the Parties should undertake promptly to enter into consultations for the purpose of reaching an agreed accommodation of the difference(s).

6.5 Financing of Interventions The requirements of international co-operation cannot be accomplished unless there is a strong commitment from the multilateral institutions and governmental donor agencies to fund such activities. This commitment must derive from the governments’ genuine intention to end the conflict between the Parties peacefully and amicably. It is true that current investments in the water sector in Palestine and Israel are huge; it is however believed that in the field of international co-operation these investments are improperly planned.210 The reason for that is obvious since as of today there is no unified donor coordination policy towards the water conflict and the means for its resolution and accordingly projects are not planned procedures that ensures no duplications and overinvestment. There is a need for the harmonization of donor policies and strategies towards the water problems and more intensified efforts.

6.6 Conclusions The modern development of the law in the field of transboundary groundwater demonstrates an increased awareness of the current and emerging water crises, the risks from uncontrolled use of groundwaters that cross borders between two or more states, and the importance of international cooperation in resolving conflicts over international waters. This development, however, has not yet triggered, at least in the area of the case studies, the conclusion of legally binding agreements concerning shared transboundary groundwater. In the absence of formal treaties, this research determines there is an emerging trend to establish networks and cooperative frameworks that are informal and technical. In Africa, the latter trend is primarily observed in the context of transboundary confined groundwaters, which are a highly valuable resource subject to no legally binding arrangement. In Europe, however, these cooperative frameworks emerge in the field of connected transboundary groundwater that are also unregulated. Europe is increasingly realizing the need to increase knowledge and awareness on their shared transboundary groundwaters, but it has not yet done so in the form of a binding treaty. As for the Middle East, especially in countries where the transboundary water resources are highly disputed, such as in Israel, Jordan and Palestine, informal regional cooperation is considered to be more viable and preferable because the current prospects for concluding obligatory commitments relating to the shared transboundary groundwaters are bleak. This research concludes that the fundamental rule governing the utilization of connected transboundary groundwater is the equitable and reasonable utilization, which includes the factor related to the degree of harm. The preceding discussion demonstrates that states appear rarely to dedicate special attention to the regulation of their transboundary groundwater. It is also evident that such resources, if included within the scope of international arrangements, are treated similarly to surface water. This research also finds that only connected transboundary groundwaters are included within the scope of the existing treaties. Confined transboundary aquifers remain formally unregulated. Such waters, and the laws governing their utilization, are currently under study and review by the ILC. In the context of the case study, it was demonstrated that the main problems derive mainly from political considerations, amplified by technical, terminology and conceptual problems related to communicating information; and uncertainties associated with technical analyses, impact assessments and grave management practices. It was also found that after many years of conflict, the Israelis and Palestinians have succeeded in achieving some level of on cooperation, which is however, impeded by negotiations. The negotiations in question are characterized their inequality in powers among the disputants. Analysis of the style of negotiation reveal that the major barrier is that one Israel, with superior power in

upon by the Commission and approved by the Governments. 6. The budget for the separate operating costs of each national section shall be the responsibility of the respective Government. 7. The Governments may jointly refer a specific matter relating to transboundary groundwater to the Commission for investigation or action. Individually Governments may request the Commission advice relating to transboundary groundwaters on matters originating within the requesting Government portion of the border region. 8. The Commission shall cause each such referral and request to be taken up and investigated studied or acted upon as appropriate. The Commission shall render a report to the Governments on every referral and request taken up”.

210 Of the main donors funding the Multilateral Water Resources Working Group on Water are the USA, European Union, Japan, Canada, Norway, and France.

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every respect, does not recognize the other Palestinian right to an independent existence, nor does it acknowledge the Palestinian other parties’ national aspirations. The water arrangements established through the peace process are politically sensitive, which is one explanation for their complete failure to address the needs of the population under the stressed political situation. Other reasons for this failure include the asymmetric conditions of the two parties at technical, political and financial levels. Above all, the heart of the problem is that these arrangements do not address the issues of legal entitlements between the parties. Israel continues to exercise full control over all the water resources, including those transboundary groundwaters shared with the Palestinians. The essence of their failure lies in the lack of prior consideration by both parties to the scope and the intensity of cooperation they wish to exert. The existing agreements are merely temporary solutions for solving only the immediate domestic needs of the Palestinians; they are mechanisms to coordinate water-related activities within the two jurisdictions for the transitional five years of the interim period, which expired in September of 1998. The last seven years of negotiations have made minimal progress. The parties have still not achieved a common agreement on the overarching principles that should govern future utilization of the international transboundary water resources. Despite the conclusions above, this research offers many lessons to be learnt in the context of transboundary groundwater shared between Israel and Palestine. It suggests that if the Palestinians and Israelis begin with an informal arrangement that demonstrates tangible benefits and progress, they could garner the national support needed to enter into more formal arrangements. The challenge is how the parties can negotiate an agreement irrespective of their unequal bargaining power by relying on the role of ethical considerations and good intentions. It will require great efforts from the Palestinian negotiators and the international mediators to engage the Israelis in negotiations over water in the above-proposed approach to resume the final status negotiations. Of crucial importance is the mutual agreement on the benefits gained from establishing cooperation based on genuine intentions. This research suggests technical cooperation is the starting point for further intensive collaboration and cooperation.

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